Testimony of the accused -this is information provided by him during an interrogation conducted in the course of pre-trial proceedings in a criminal case or in court, and recorded in the manner prescribed by law.
Testimony is for the accused lawnot a duty . He does not bear any responsibility for knowingly giving false evidence or for refusing to testify, which is one of the important guarantees for ensuring the right to defense.
The accused is interrogated during the investigation after the presentation of charges against him, and in court - when he already knows the content of the indictment or a document replacing it. Therefore, the main obsession the testimony of the accused are the circumstances that form the content of the charge brought against him.
The accused, if he confesses to committing a crime, not only recounts the course of events, but also, as their immediate the participant and the person interested in the outcome of the case, gives them an explanation, his interpretation, in particular sets out the motives for his actions, their reason. He can give his own version of events, some other explanation of them, he can give some extenuating or justifying circumstances. In addition, the accused has the right to give in his testimony an assessment of the evidence available in the case, may reject them or question them. The testimony of the accused may contain information about his personality, in particular biographical data. So Thus, the subject of evidence the accused is wider than the subject of the testimony.
What is the evidencemeaning the testimony of the accused? On the one hand, the accused is better than anyone else, aware of all the circumstances of the crime. Therefore, he is the owner of the most complete Evidence-based information. But, on the other hand, the accused is most often more than anyone interested in hiding this Information or distorting it, since his fate depends on the outcome of the case.
The testimony of the accused is traditionally divided into two types : testimonies in which he admits his guilt (full or partial), and testimonies in which this guilt is denied. Let us first consider the evidentiary value of the confession of guilt by the accused.
CONFESSION:
not only vicious methods of investigation can lead to false self-incrimination accused. In practice, there are many cases of such self-incrimination, made from a variety of motives: in order to take the guilt of a loved one, to hide the commission of another, more serious crime, for fear of betraying the real culprits, etc. Thus, an accused who has committed a dozen thefts may confess in another theft committed by another person, in fact, since this will not significantly affect his fate; Thus the confession of the accused his guilt, taken in isolation, still means nothing. At the same time, the importance of the truthful testimony of the accused cannot be underestimated.
What is the evidentiary value of the accused's confession?, evidentiary value is not the fact that the defendant confesses his guilt, but specific information about the circumstances of the crime. secondly, this information must be confirmed by the totality of evidence collected in the case. Thus, the evidence is not the fact that the accused admits his guilt, but the information provided by him, indicating his involvement in the commission of the crime and objectively confirmed during the audit.
The recognition by the accused of his guilt can be taken as the basis for the prosecution only if the recognition is confirmed by the totality of the available evidence in the case (part 2 of article 77 of the Code of Criminal Procedure). According to paragraph 1, part 2 of Art. 75 Code of Criminal Procedure to unacceptable Evidence includes the testimony of the accused, given in the course of pre-trial proceedings in a criminal case in the absence of a defense counsel, including cases of refusal of a defense counsel, and not confirmed by him in court. This rule also serves as an important safeguard against the use of unlawful methods of influence in order to obtain a confession from the accused.
At the same time, it is necessary to distinguish between the evidentiary value of the confession of guilt by the accused and the legal value of such a confession. Thus, the termination of a criminal case or criminal prosecution on non-rehabilitating grounds is possible only with the consent of the accused (Articles 26-28 of the Code of Criminal Procedure), which also implies an admission of his guilt (since he agrees with such a basis). In court proceedings, in general, a special procedure for making a decision is possible with the consent of the accused with the charge brought against him (Articles 314-317 of the Code of Criminal Procedure). These rules are the implementation of the principle of competitiveness of the parties. Based on this principle, the legislator goes to the refusal (full or partial) of proof, its reduction, when the accused does not object to this, when there is no dispute between the parties.
This does not seem to be included in the question, but everything is necessary just in case ... Let's consider now other type of testimony of the suspect, the accused - their denial of their guilt . Such testimonies are also subject to careful and comprehensive verification, and all the argumentsand taken must be either refuted or confirmed. If neither one nor the other succeeded and there are doubts about the presence (absence) of any circumstances, then they are interpreted in favor of the accused.
The accused's denial of his guilt in itself is not exculpatory evidence, since it does not contain any specific factual data testifying to his innocence. If the accused, denying his guilt, refers to certain circumstances, reports on any facts, the duty to establish whether they correspond to reality lies with the investigator, prosecutor and court.
In such cases, the conclusion about the guilt of the accused can be made if his testimony is refuted, and the guilt is proven by indisputable evidence. By virtue of the principle of the presumption of innocence and the rule on the duty of proof, the fact that the accused, while denying his guilt, does not provide any data in his defense, cannot be regarded as incriminating evidence.
The testimony of the accused, who denies his guilt, must be verified objectively, without a biased and one-sided approach to them. The accusatory bias in the investigation and consideration of the case is manifested most often in distrust of the testimony of the accused, who denies his guilt, failure to take proper measures to verify them.
“Confession is the queen of evidence,” once said Soviet prosecutor Andrei Vyshinsky. However, the Supreme Court believes that the admission of guilt cannot serve as the only basis for a guilty verdict. What do lawyers think?
An admission of guilt cannot serve as the sole basis for a guilty verdict. This is what the draft plenum of the Supreme Court says. In this regard, many recalled the saying "Confession is the queen of evidence", which is attributed to the Soviet prosecutor Andrei Vyshinsky. He is considered one of the organizers of the Stalinist repressions.
Why is the Supreme Court now emphasizing that a guilty plea cannot serve as the sole basis for a guilty verdict?
Tamara Morshchakovaretired judge of the Constitutional Court“They shook their finger at the courts so that the practice would come to its senses. It’s just that the Supreme Court felt some kind of public, in my opinion, already concentrated expressed dissatisfaction with the fact that our courts only condemn”
Although in practice this project of the plenum of the Supreme Court will not change anything, lawyer Alexander Karabanov believes.
Alexander Karabanov advocate “The draft plenum, in principle, does not change anything in law enforcement, because at the moment these same provisions are duplicated both in the Code of Criminal Procedure and in other regulations. When an investigator is investigating a case, of course, he cannot send the criminal case to the prosecutor's office for approval of the indictment, only based on a confession. The prosecutor's office requires that any testimony, even if it is the testimony of the accused, of course, must be confirmed by other sources of evidence. That is, this plenum is not new. I think the situation will not change. Maybe the vicious practice was in high-profile cases in the USSR. As far as I know, in the case of the serial killer Chikatilo, in my opinion, three people were shot only on the basis of a confession of guilt, and then a real maniac was found. In my practice, there were definitely no such cases, because after all, our investigative bodies work, from the point of view of personal safety, because the investigator bears personal criminal liability if he brings an innocent person to criminal liability.
How often are convictions based on a guilty plea alone?
Roman Voronin Managing partner, attorney, founder of RI-Consulting Company“This happens quite often, but even if it is based only on this, and the accused really admits this guilt, and the rest of the evidence is not direct, but indirect, this does not contradict the law, is not somehow inhumane, if there is a certain amount indirect evidence, and from direct - only an admission of guilt. This is not about something becoming more humane, less humane. Here we are talking about the technical aspects of passing these sentences themselves, nothing more.”
Ruslan Koblev, managing partner of the Koblev & Partners Law Office, considers the current plenum to be forced.
Ruslan Koblev Managing Partner of the Law Office "Koblev and Partners"“The current plenum is forced. That is, the Supreme Court understands that court decisions are biased. We now encounter absolutely monstrous sentences in practice, in which the description of the criminality of the act is reduced to two or three phrases and does not directly follow from the fact that the court has established the guilt of the defendant. And most importantly, soon, I think, we will see 100% of sentences handed down in a special manner and by pre-trial agreement. Unfortunately, this does not mean perfect disclosure, it means that law enforcement officers have learned to break the accused, suspects at the initial stages, and then simply no one is going to investigate objectively criminal cases anymore, because the investigator knows that since the accused has chosen such a method of protection, he was forced to choose, then in any case a guilty verdict will be issued, even if there is no element or event of the crime at all. And the Supreme Court, of course, sees this negative practice and tries to correct judicial practice in such a way, a little slyly.”
The Supreme Court also noted: if the case is considered in a special order when the defendant is found guilty, and the process takes place in a shortened form, then the judges still have to make sure that the charge is justified.
Every lawyer knows following expression: “The admission of guilt by the accused is the “queen of evidence”. This forms the basis presumption of guilt, which for a long time was one of the principles of the criminal process, built on the inquisitorial type. Our country is no exception, where A.Ya. Vyshinsky. Such views were generally characteristic of periods of strict authoritarian rule in Russia. If we turn to the Military Regulations of Peter I, then there you can find a provision according to which the accused's own confession of guilt is the most valuable, the best evidence.
Art. 5 of the Criminal Code of the Russian Federation fixed the provision according to which objective imputation is not allowed. Art. 49 of the Constitution of the Russian Federation, in accordance with international conventions and agreements on human rights, to which Russia is a party, quite fully reflected the principle of the presumption of innocence. Thus, the accused is considered innocent by the Basic Law. The principle of the presumption of innocence in the process of establishing the circumstances of the case guarantees the accused that bias on the part of the officials conducting the process should be excluded. Art. 273 of the current Code of Criminal Procedure provides for the norm according to which the presiding judge, starting the judicial investigation, asks the defendant whether he pleads guilty.
It should be emphasized that the understanding of guilt as an element of the subject of interrogation of the accused was not avoided even by leading experts in the field of the theory of criminal procedure. This, in particular, is evidenced by the title and content of the article by M.S. Strogovich "Acknowledgement by the accused of his guilt as forensic evidence". A similar approach has been preserved in the criminal procedural and forensic literature to this day. However, this use of the concept of guilt is theoretically incorrect. After all, guilt is psychological condition person at the time of the crime, his attitude to the deed in the form of intent or negligence. This is perhaps the most complex element of the crime and proving its content in practice is the most difficult. Of course, the subject of the testimony of the accused may also be a description of his mental state at the time of the commission of the crime, before it and after it was committed. These data play a significant role in deciding whether it is necessary to appoint a psychiatric or psychological-psychiatric examination. But in any case, only the court can give them an assessment (as well as the investigator during the interrogation of the accused at the preliminary investigation). legal issue on the guilt of a person, being a key element of the corpus delicti and the subject of proof, is within the competence of the court and the investigator, who have the necessary knowledge for this.
In practice, situations are possible when the accused says that he is guilty of a crime that can only be committed intentionally or even only with direct intent, although in fact he committed the act through negligence or, accordingly, with indirect intent. After all, finding the line between different forms and, moreover, types of guilt is not an easy task even for a qualified lawyer. Thus, by posing to the defendant the question of admitting his guilt, the court uses the legal ignorance of the interrogated person and in the future may come to a situation where the defendant declares self-incrimination.
What, then, is the meaning of the question of the accused admitting his guilt? Based on the foregoing, by asking such a question to the defendant, one can find out only one thing - his relation to the accusation. Thus, there is a doubling of the concept of guilt, which is difficult to agree with. Such a provision is unacceptable both in theoretical and practical terms, since it can lead to investigative and judicial errors leading to objective imputation. The answers of the accused to the question about “confession”, “partial confession” or “non-confession” of his guilt, although they have become traditional in practice, are not related to the understanding of guilt as an element of the interrogation of the accused and do not contain evidentiary information that is really important for clarifying his guilt. If the accused (defendant) truthfully states the circumstances of the commission of the act, contributes to the disclosure of the crime, then in this case no special “confession” is required.
Wine (its forms and types) is primarily a criminal law category. It receives its assessment when the court categorizes the crime committed under the relevant article of the Criminal Code. For this and before this, a real psychological mechanism for committing a crime must be established: its motive, purpose, consciousness of choosing the object of the attack, knowledge of the special features of the latter, the presence of a specific plan for committing a crime, the selection of accomplices, or, conversely, the suddenness of the decision to commit a crime, and so on. Further. Having been established, the listed subjective circumstances are the evidence base on which the court, guided by the norm of the Criminal Code, determines the form and type of guilt of the defendant.
Thus, the subject of the interrogation of the defendant is the circumstances known to him, relevant to the case, including those revealing the subjective side of the act. The testimony of the defendant about the actual circumstances of the case is the realization of his right to defense, including the desire to mitigate the punishment, taking into account giving full and truthful testimony.
The desire to get the accused to confess his guilt before the court passes the verdict is always a means of putting pressure on him in order to return the accused to his previous testimony given during the preliminary investigation. The court begins to start not from the established factual data and the presumption of innocence, but from this confession.
In recent years, defendants who confessed their guilt during the preliminary investigation often renounce their previous testimony in court and state that they confessed to committing a crime as a result of violence, threats and other illegal measures used against them by officials of the investigating authorities. The truth of each of these statements is subject to careful scrutiny. But in practice, the forms of such verification are still far from perfect. For a long time, the main method of resolving this issue was the interrogation of investigators and operative police officers, the unlawfulness of whose actions the defendant referred to, as witnesses. At the same time, of course, the interrogated “witnesses” were warned about criminal liability for evading testimonies and for giving knowingly false testimonies. Obviously, such interrogations are nothing but a gross violation of Art. 51 of the Constitution of the Russian Federation, according to which no one is obliged to testify against himself, and the relevant officials law enforcement forced to testify about circumstances that could be imputed to them as a crime. It is clear that the answers have always been almost the same. Currently, the courts prefer to interrogate the persons who conducted the preliminary investigation, sending the relevant materials to the prosecutor to verify the truth of the defendant's statement about the use of unlawful methods of investigation against him. This, as it were, relieves the court of responsibility for conducting illegal interrogations, but the number of procedural violations does not decrease. The prosecutor's office still does not initiate criminal cases on these facts.
The question of the reliability of the statement of the defendant with either method of verification remains open, the arguments of the defendant - not reliably refuted. When pronouncing a guilty verdict, the court proceeds only from the assumption that the statement of the defendant about the use of violence, threats and other prohibited measures against him during the investigation or inquiry is false. At the same time, in justifying the guilt of the defendant, the courts in the verdict often refer to his testimony given during the preliminary investigation, although doubts about the legality of their receipt, and hence the admissibility of using them as evidence, remain unresolved. Thus, another important constitutional norm is violated - “irremovable doubts about the guilt of a person are interpreted in favor of the accused”.
Article 21 of the Constitution of the Russian Federation proclaimed the principle of respect for the dignity of the individual. It applies equally to criminal proceedings. From these positions, asking the defendant whether he pleads guilty at the moment when the presumption of innocence has not yet been refuted by the verdict of an independent, impartial and objective court that has entered into legal force, when for all those present and participants in the process the defendant is innocent, is not only not based on law but also immoral in relation to the defendant.
In addition, such recognition itself can be caused by various reasons of a subjective order, ranging from the desire to hide another crime to self-incrimination in order to free a loved one from responsibility. Confession of guilt is also a kind of psychological attitude of the defendant to the prosecution.(and not to a perfect act, as noted above), a psychological reaction to procedural actions. Therefore, it, like other similar reactions, cannot be of any evidentiary value.
Moreover, one cannot agree that in the law and in judicial practice it has become generally accepted that when the defendant changes his testimony given during the preliminary investigation, the court and the public prosecutor begin to seek explanations from the defendant on this matter. This does not fit in with the fact that giving evidence for the defendant is a right, not an obligation, and therefore, to change or not to change his testimony is his personal business. Priority, in case of contradiction, shall be given to the testimony given in the trial., in the conditions of a public competitive procedure that provides the highest level of procedural guarantees for the observance of the rights of the participants in the process and, above all, the accused himself. Only if the defendant claims that he was forced to testify as a result of unlawful measures being taken against him during the preliminary investigation, the court must take appropriate measures to verify these data, including with the help of the defendant's testimony.
Art. 77 of the Code of Criminal Procedure, as well as a similar norm of the Code of Criminal Procedure of the RSFSR, states: “The confession by the accused of his guilt can be taken as the basis of the charge only if the confession is confirmed by the totality of evidence available in the case.” So the law states - "the confession of guilt can be taken as the basis of the accusation." Let's try to object - it should not, by virtue of the presumption of innocence, and cannot, since the confession of the accused can be obtained only after giving him such a procedural status, that is, after the indictment is brought, and after all, the basis of the accusation is nothing more than a sufficient the totality of factual data collected by the investigation by the time the person was brought in as an accused. The indictment must also not go beyond the limits of the accusation established by the decision to bring him as an accused. And so the court is limited by the same framework.
Testimony of the accused cannot be obtained during the production of urgent investigative actions, since the interrogation of the accused is possible only after the presentation of the charge, formulated on the basis of sufficient evidence, which are established: protocols for examining the scene, area, premises, corpse, search protocols, seizure, detention, examination , testimonies of suspects, victims, witnesses. The norm is part 2 of Art. 173 of the Criminal Procedure Code of the Russian Federation, which obliges the investigator to ask the accused about his confession of guilt, does not apply when interrogating a suspect.
Practice shows that it is the performance of urgent investigative actions that allows the investigator to obtain a set of sufficient factual data that are the basis of the charge during the preliminary investigation and set out in the decision to bring him as an accused. This evidence enables the investigator to consider the event of the crime, the qualification of the crime, the absence of circumstances that eliminate criminal liability and the person to be charged as an accused as established. To clarify all these circumstances, it is of no importance whether the accused admits or does not admit his guilt.
Only the factual data contained in the testimony of the accused can have probative value, while the admission of guilt in itself is not provided for in the list of types of evidence. However, in practice, in court verdicts and indictments, one can often find an indication that the guilt of the accused (defendant) is confirmed by his admission of guilt. In the case when the accused (defendant) testifies about the event of the crime, the circumstances of its commission, his motives, etc., that is, the testimony incriminating him, this is, of course, the most important source of evidentiary information. When he answers the question of the court or the investigator whether he is guilty of a crime, then there is no such information in the answer to this question, because it does not contain factual data, but the legal category of guilt. The solution of questions of law is the prerogative of the court. After examining and evaluating the testimony of the accused in conjunction with other evidence in the case, the judge, based on his inner conviction and the norms of the Law, must decide on the issue of guilt.
And one moment. At present, the question of the duties of a defense lawyer in a criminal case in the event that his client recognizes his guilt in a crime, which, judging by the materials of the case, he did not commit, causes difficulties both in scientific literature and in practical work.
Federal Law "On Advocacy and Advocacy in the Russian Federation" in clause 3, part 4, art. 6 prohibits an attorney from taking a position in a case contrary to the will of the principal, except in cases where the attorney is convinced of the existence of the principal's self-incrimination. However, an admission of guilt by the accused may be false not only in the case of self-incrimination, but also for the reasons already mentioned above: due to legal illiteracy, the accused can declare his guilt in committing a crime without taking into account the fact that the criminal law recognizes this act as criminal only when committed intentionally or only with direct intent; the accused may plead guilty to a more serious crime than he actually committed, etc.
The defender must first of all find out the reasons that prompted a person to testify against himself It is one thing if he was forced to do this, another if the accused deliberately defends the true criminal. As already noted, it happens that the accused simply does not understand the meaning of the charge, with which he agrees. The lawyer, having seen in the materials of the case grounds to doubt the confession made by the accused, having discovered any exculpatory evidence, is obliged to point them out to the defendant and offer to refuse such a confession. If the lawyer is convinced that the confession of guilt made by the defendant is false, he is not only entitled, but also obliged to convince him to retract this testimony.
Ryazanovsky V.A. Unity of process. M.: Gorodets, 1996. P.30.
Mizulina E.B. The independence of the court is not yet a guarantee of justice // State and Law. 1992. No. 4. Decree. op. S. 55.
Alexandrov A. On the meaning of the concept of objective truth // Russian justice. 1999. No. 1. S. 23.
Vyshinsky A.Ya. The theory of judicial evidence in Soviet law. M., 1941. S. 28.
Alexandrov A. Decree. op. S. 23.
Pashin S.A. Problems of evidence law // Judicial reform: legal professionalism and problems of legal education. Discussions. - M., 1995. - S. 312, 322.
Pankina I.Yu. Some aspects of the evolution of the theory of proof in criminal proceedings in Russia // Schools and directions of criminal procedure science. Reports and messages at the founding conference of the International Association for the Advancement of Justice. St. Petersburg, October 5-6, 2005 / Ed. A.V. Smirnova. SPb., 2005.
Smirnov A.V., Kalinovsky K.B. – Criminal process: Textbook for universities. - St. Petersburg: Peter, 2005. - p. 181.
See: Vinberg A.I. Criminalistics. Introduction to criminalistics. - M., 1950. Issue 1.- P.8; Belkin R.S. Collecting, examining and evaluating evidence. Essence and methods. M., 1966.- S. 44-53; Belkin R.S. Criminalistics: problems, trends, prospects. General and private theories.- M..1987.- S. 217-218.
See: Larin A.M. The work of the investigator with evidence.- M., 1966.- S. 43-66; Gorsky G.F., Kokorev L.D., Elkind P.S. Problems of evidence in the Soviet criminal process. - Voronezh, 1978. - P.211.
See: Sheifer S.A. Collecting evidence in the Soviet criminal process: methodological and legal problems. - Saratov, 1986. - P.41-42.
See: Sheifer S.A. Decree. cit. - P.55-73; Kipnis N.M. Decree. cit. - S. 65-66.
Rezepov V.P. Subjects of proof in the Soviet criminal process // Uch. Zap. LGU. - 1958. - P.112.
Chedzhemov T.B. Judicial investigation. – M.: Yurid. lit., 1979. - S. 9.
Sheifer S.A. Evidence and proof in criminal cases: problems of theory and legal regulation. - Togliatti: Volga University. V.N. Tatishcheva, 1997. / http://www.ssu.samara.ru/~process/gl2.html.
Kuznetsov N.P. Evidence and its features at the stages of the criminal process in Russia. Abstract diss. for an apprenticeship degree of doctor of jurisprudence Sciences. - Voronezh, 1998. - P. 152.
Grigoryeva N. Principles of criminal proceedings and evidence // Russian justice. - 1995. - No. 8. - S. 40.
Smirnov A.V. Reforms of criminal justice at the end of the 20th century and discursive competitiveness // Journal of Russian Law. - 2001. - No. 12. / http://kalinovsky-k.narod.ru/b/sav-2001.htm.
Shamardin A.A. Some aspects of fixing the elements of the principle of discretion in the Code of Criminal Procedure of the Russian Federation // The role of university science in the regional community: Proceedings of the international scientific and practical conference (Moscow-Orenburg, September 1-3, 2003). In 2 parts. Part 2. - Moscow - Orenburg: RIK GOU OSU, 2003. - P. 300.
Smirnov A.V. Decree. op.
Confession or non-admission of guilt in criminal proceedings is a matter of tactics of choice of defense, which is developed jointly with the client, and it is actually based on all stages of criminal proceedings. Unfortunately, the opposite also happens.
An experienced criminal lawyer does not always understand the position of those accused who, during a long period of investigation, cannot in any way join “this” or “other” shore of their position under investigation - to admit or not to admit guilt. Usually such clients in a conversation are not sincere, voluntarily or not, they confuse even themselves in details. In other words, I will say that if a trusting relationship and understanding has developed between the lawyer and the client, then as the criminal investigation moves forward, taking into account the evidence attached to the case, interviewing witnesses, both from the investigation and the defense counsel, usually to the presentation of charges by the lawyer -the defender and the accused already have a position on the case, which does not change before the trial, with the exception of force majeure during the investigation. It is very difficult to do this, but it is possible and in practice it turns out.
After the first conversation with the client, parting with him for a short time gives the client the opportunity, at the next meeting, if he is in a pre-trial detention center, to choose a position on the case, first unilaterally, and then, together with a lawyer, hone all the nuances. But the main thing is to admit or deny guilt, that is the question!
An interesting case was brought to the lawyer to read in one article.
A criminal case was considered in one of the courts of the city of Moscow in a special order under the first part of Article 109 of the Criminal Code of the Russian Federation - causing death by negligence. This article provides for punishment in the form of imprisonment for up to two years. But in agreement with the prosecutor, the relatives of the deceased and the criminal lawyer, the defendant conducted the case in a special manner and the defendant was sentenced to restraint of liberty, the case did not come to deprivation of liberty, due to the admission of guilt, with a controversial version of guilt. But if the defendant fully admitted his guilt and agreed with the indictment brought against him, then justice shows leniency towards such defendants.
And the case, as it was written, was just a household one. One neighbor hit another, and the latter tore apart the internal organs during the fall and subsequently died prematurely without seeking medical help. Attention is drawn to the fact that after the arrest, a criminal case was initiated against the suspect under Part 4 of Article 111 of the Criminal Code of the Russian Federation, which, if the guilt of the accused is fully proven, despite the fact that he does not admit his guilt and there may be evidence of his innocence in the case , with which you need to work, and not keep in a folder for papers, with the active support of the prosecutor and the consent of the court for such a crime, a person can be imprisoned for up to fifteen years.
The lawyer is a very important figure in criminal proceedings. Assuming the duties of a defender, the lawyer takes full initiative in choosing the tactics of choosing a defense, develops and offers his client a line of conduct, a position in father-in-law. If the lawyer is completely sure of the innocence of his client, the struggle for an acquittal should be fought to the bitter end, despite any obstacles and doubts about the fairness of the court. This is especially true in cases of necessary defense, where the actions of the parties are not always lawful, but one of the participants is the victim and the defender.
However, the practice is inexorable and sometimes contradicts the realities and justices that are inherent in almost every one of us. At the present time, when the criminal process is not fully aimed at establishing the truth by its adversarial nature, one should not hope for justice without having evidence of one's innocence. I don’t know, maybe only “aces” work in the Investigative Committee of the Russian Federation, but as practice shows, all criminal cases initiated by this department are focused only on the judicial perspective, it seems that the committee’s employees are deprived of the right to make a mistake and all cases go to court, without exception.
It is hard to disagree with a colleague who says that the incredible focus of courts at all levels on a guilty verdict turns acquittal in some cases into an illusion, despite the fact that there is evidence of the defendant's innocence in the case, however, they are interpreted and presented by the prosecutor to the court in a different form, from the standpoint of the prosecution, and the lawyer in this state of affairs turns into a "boy" for whipping, but with his ambitions to go further and prove the innocence of his client. This is a very worthy deed, but someone will say bluntly: can a defense lawyer risk the freedom of his client in this way, or is it necessary to be flexible and go along with the “cause” of the prosecution?
I hear from experienced lawyers in Moscow that sometimes the non-admission of guilt to the defendant is ambition and the defender's game of justice, and for the client it is an opportunity to receive a long prison sentence. Honesty, decency and incorruptibility have always adorned a lawyer in court, and if the client is sure of his innocence and there is at least a bit of evidence that needs to go forward, victory will surely ripen, if not in a court of first instance, then in a court of another instance, up to the Supreme Court, they can change the situation. The practice of such cases, though small, but there.
A criminal lawyer does not understand the position of some defense lawyers who wish to limit the freedom of a defense attorney in choosing a position for a client in the developed Standards, namely, to moderate the ardor of a defense attorney to seek an acquittal, even when there is evidence of the defendant's innocence in the case. Such “lawyers”, as practice shows, are afraid to take risks, since the existing vicious practice of some courts, in their opinion, can put the defendant in a “bad situation”, but this may happen in some courts, but not in all.
So think about whether the position of not recognizing one’s guilt by the client, with existing evidence with an ambitious, honest and competent lawyer, has the right to risk, or vice versa - to admit guilt in an imperfect act out of hopelessness with a defender loyal to justice
Androsenko N., Adjunct of the Department of Criminal Procedure, Moscow University of the Ministry of Internal Affairs of Russia.
The question of the significance of the testimony of a suspect, an accused who admits his guilt, is one of the most controversial issues of the law of evidence.
For a long period of time, admitting one's guilt was considered the "queen of evidence." From the end of the 17th century in the area of litigation the principles of the search, the "inquisitorial" process, dominated. The main evidence was his own admission of guilt, and torture could be used to obtain it, and torture was not extra-procedural, it was regulated by law. If the accused pleaded guilty, no other evidence was required. So, for example, a Brief Image of Trials or Litigation (1715) contains an indication that if the defendant admits guilt, no other evidence of guilt is required, since "one's own confession is the best evidence of the whole world"<1>.
<1>Reader on the history of the state and law of Russia / Ed. Yu.P. Titov. M., 2004. S. 160.
In the course of the judicial reform of 1864, the previously existing system of formal evidence was abolished, the admission of guilt by a person was equated with other evidence, and the dominant evidence lost its significance.
The Code of Criminal Procedure of the Russian Federation considers the testimony of a suspect, the accused as one of the types of evidence in a criminal case (part 2 of article 74), however, the testimony of a suspect, the accused does not have priority over other types of evidence. The legislator does not give preference to any one type of evidence, considering it more convincing. In part 2 of Art. 17 of the Code of Criminal Procedure of the Russian Federation contains a requirement according to which no evidence is available in advance established force. This does not allow to attribute any types of evidence to higher priority, preferable ones. All evidence is evaluated in comparison with others available in the criminal case.
In the science of criminal procedural law, there are different points of view on the meaning and place of the testimony of suspects, accused, pleading guilty, among other evidence. Thus, R. Kussmaul believes that the testimony of the suspect, the accused should be generally excluded from the evidence, since "they are always doubtful." In his opinion, the credibility of the testimonies of the suspect, the accused and the defendant can be influenced by both illegal methods of investigation and various other factors, for example: delusion, a serious combination of personal, family and other circumstances, illness, violence and threats from genuine criminals, their relatives or acquaintances. They can plead guilty in order to avert suspicion from a loved one, go free to care for a sick family member or self-medicate, not leave the house and property unattended, etc.<2>.
<2>See: Kussmaul R. Exclude the testimony of the accused from evidence // Russian Justice. 2001. N 7. S. 53.
However, we believe that the testimony of the suspect or the accused cannot be excluded from the evidence, since this may lead to a violation of their rights. Giving evidence is a right, not an obligation, of the suspect, the accused, and, as V.I. Kaminskaya, " the most important feature which characterizes the testimony of the accused from the point of view of their procedural significance, lies in the fact that with the help of the testimony the accused exercises his right to defense"<3>. During the interrogation, the accused exercises the right to defense by expressing his attitude to the charge (the suspect - about the suspicion), bringing evidence that justifies or mitigates his responsibility. Therefore, the exclusion of the testimony of the suspect, the accused from the evidence may violate their right to defense.
<3>Kaminskaya V.I. Testimony of the accused in the Soviet criminal trial. M., 1960. S. 19.
In addition, one should not underestimate the significance of the testimonies of suspects, defendants who admit their guilt. The interrogation of a suspect, an accused who has admitted guilt in committing a crime, makes it possible to collect new evidence, previously unknown to the investigator, which is very difficult to detect without his testimony. Only the suspected, the accused can report such important information as the circumstances characterizing the subjective side of the crime (mental attitude to the crime, motive). Thus, such testimony can serve as a means of establishing the circumstances to be proved in a criminal case. When a person admits his guilt in committing a crime at the initial stage of the investigation, the nature and direction of the investigative actions change, which makes it possible to reduce the timeframe for the preliminary investigation and material costs for conducting investigative actions and operational-search measures to solve the crime and establish all the circumstances of the criminal case.
As evidence, one should use not the admission of guilt itself, but specific information contained in the testimony of the suspect, the accused. Comparing this information with the data available in the criminal case, one can draw a conclusion about the veracity or untruthfulness of these testimonies. That is why Art. 77 of the Code of Criminal Procedure of the Russian Federation establishes that the confession of the accused of his guilt cannot be the basis of the accusation without a body of evidence. According to P.A. Lupinskaya, "the evidence is not the fact that the accused admits his guilt, but the information he reports, indicating his involvement in the commission of the crime and objectively confirmed during the audit"<4>.
<4>Criminal Procedure Law Russian Federation: Textbook / Ans. ed. P.A. Lupinskaya. M., 2004. S. 265.
There are also situations when the accused pleads guilty, but refuses to testify in accordance with Art. 51 of the Constitution of the Russian Federation. In this case, the confession of the accused cannot be used as evidence, because it does not contain information of probative value. In addition, we agree with the opinion of M.L. Yakub, that such a confession should not have an impact "on the formation of the conviction of the judges, the investigator, the prosecutor of the guilt of the accused"<5>.
<5>Yakub M.L. Testimony of the accused as a source of evidence. M., 1963. S. 31.
Considering the probative value of the information reported by the suspects, the accused, one should refer to the explanations of these persons, since Part 4 of Art. 46 of the Criminal Procedure Code of the Russian Federation grants the suspect the right to give not only testimony, but also explanations (the accused has the right to give only testimony). However, explanations, as a source of significant information, are not included in the evidence in a criminal case, and the legislator does not give an explanation to this concept and does not designate its essence. Under the testimony of the suspect, the accused Code of Criminal Procedure understands the information provided by them during interrogation, therefore, the information provided by them in the course of other investigative and procedural actions should be considered explanations. As explanations, one can consider the information contained in the confession, reported upon acquaintance with the examination, during detention, etc. A.M. Larin also understands explanations as letters, statements, etc., compiled by the participants in the process outside the investigative actions, in which something important for the case is reported to the investigator. In turn, the investigator is obliged to accept and attach these documents to the case.<6>.
<6>See: Larin A.M. Criminal investigation: procedural functions. M., 1986. S. 72 - 75.
We believe that the explanations should also be considered as evidence in a criminal case, since, in our opinion, they are integral part testimonies of the suspect, are fixed not in the record of interrogation, but in other procedural documents or attached to them. Thus, a procedurally formalized explanation in which a person admits his guilt, we believe, can be used as evidence. At the same time, it applies general rules verification and evaluation of evidence.
The Criminal Procedure Code of the Russian Federation provides for guarantees against the use of illegal methods in relation to suspects, accused in order to obtain a confession of guilt from them. So, for example, according to paragraph 1 of part 2 of Art. 75 of the Code of Criminal Procedure of the Russian Federation, inadmissible evidence includes the testimony of a suspect, an accused, given in the course of pre-trial proceedings in a criminal case in the absence of a defense lawyer. According to S.A. Novikov, this should stop the sometimes encountered practice of obtaining a confession by an investigator from a suspect accused "at any cost", using illegal methods of influence, since the "evidence" obtained in this way will instantly lose force in court when the defendant changes his testimony<7>.
<7>See: Novikov S.A. New Code of Criminal Procedure: testimonies of the accused // Russian investigator. 2002. N 2. S. 34.
The confession by the defendant of his guilt, if it is not confirmed by the totality of other evidence collected in the case and examined at the court session, cannot serve as a basis for issuing a guilty verdict.<8>. But one should not think that it is necessary to reinforce such testimony during the preliminary investigation with other evidence so that the accused cannot retract it in court. We fully agree with V.I. Kaminskaya, who points out that "verification of the testimony of the accused by other evidence established in the case is necessary to establish the truth, and not to make the accused feel bound by such consciousness"<9>.
<8>See: Resolution of the Plenum of the Supreme Court of the Russian Federation of April 29, 1996 N 1 "On the Judgment" // Collection of Resolutions of the Plenums of the Supreme Courts of the USSR and the RSFSR (Russian Federation). M., 2005. S. 663.
<9>Kaminskaya V.I. Testimony of the accused in the Soviet criminal trial. M., 1960. S. 81.
However, it should be noted that the testimony of a suspect, an accused who admits his guilt requires the same verification as any other type of evidence. Article 87 of the Criminal Procedure Code of the Russian Federation states that all evidence in a criminal case must be verified by an interrogator, investigator, prosecutor, court by comparing them with other evidence. Their sources should also be established, other evidence should be obtained that confirms or refutes the evidence being verified. Proceeding from this, it can be concluded that no evidence (admission of guilt by the suspect, including the accused) can be taken as the basis of the accusation without the presence of other evidence. Then why is the legislator in Part 2 of Art. 77 of the Criminal Procedure Code of the Russian Federation duplicates the same provision in relation to the admission of guilt by the accused? In our opinion, this norm has its purpose in focusing the attention of the law enforcement officer, so that he is critical of the testimony of the accused, who admits his guilt, since this type of evidence in this sense requires special treatment. According to M.L. Yakub, this rule "is aimed at preventing the attitude that occurs in practice towards the consciousness of the accused not as an ordinary, ordinary source of evidence, but as a source of evidence with special qualities"<10>. It is impossible to understand the testimony of the suspect, the accused, who admits his guilt, as absolute evidence, and if the suspect, the accused admits his guilt, stop further collection of evidence in the criminal case. The guilt of a person must be proven by a combination of evidence, since the accused may subsequently withdraw his testimony. And if the confession is the only evidence of his guilt, the person can avoid responsibility. We believe that the confession of guilt by the suspected, the accused should not entail a reduction in the volume of investigative actions. In this case, it is not the volume that changes, but the direction of the ongoing investigative actions.
<10>Yakub M.L. Decree. op. S. 41.
The significance of the testimonies of suspects, accused, pleading guilty, is especially evident in criminal cases of group crimes, when it is difficult to establish the exact role of each accomplice. At the same time, the admission of guilt by suspects, accused in committing a crime in a group must be treated with due attention. Here one should keep in mind the possible knowingly false testimony of the accused, i.e. self-incrimination. The motives for self-incrimination in such cases may be the desire to relieve accomplices from criminal liability, the desire to protect relatives or other close persons from criminal liability, on the other hand, the desire to gain authority in a criminal environment or the situation when the evidence collected in the case gives the impression of the guilt of the accused and he decides to admit guilt in order to mitigate responsibility. There are other reasons for self-incrimination, which are determined both externally and internally.
That is why the recognition by a person of his guilt in committing a crime is subject to careful verification and proof.
However, the question arises: what amount of evidence should be considered sufficient to confirm the confession of the suspect, the accused, and can it be sufficient to confirm the testimony in the course of such an investigative action as checking the testimony on the spot? IN AND. Kaminskaya believes that "if consciousness was false, then such a procedure can easily lead to a repetition of false consciousness." It is possible to disagree with this statement. It is unlikely that a person who has slandered himself can know all the details of the crime committed and be well oriented at the scene of the incident, confidently reproduce the situation and circumstances of the event under study. In our opinion, only the person who actually committed the crime can, during the verification of his testimony on the spot, indicate the circumstances that are important for the criminal case (for example, show the place where the crime weapon was left, the stolen property was hidden, etc.).
Issues that arise when considering the testimony of a suspect, an accused who admits his guilt, are controversial. But it is indisputable that giving the confession of guilt the significance of priority evidence serves as evidence of the rejection of the desire to establish objective truth in a criminal case. Therefore, the testimony of the suspect, the accused, who admits his guilt, must be carefully checked, compared with the evidence already available. Only in this case it is possible to speak about the observance of the basic principles of criminal proceedings.
