At the inquest he does not admit guilt. Do you admit guilt? Common ploy by investigators

Any lawyer knows the 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 the psychological state of a person at the time of the commission of a 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). The legal question of 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 that, 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 the crime, the selection of accomplices, or, conversely, the suddenness of the decision to commit the 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 law enforcement officials were 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 illegal 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 order to substantiate 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 subjective reasons, 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, it is impossible to agree with the fact 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 declares that he was forced to testify as a result of unlawful measures being applied to 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.

In chapter 40 and in the text of art. 314 of the Criminal Procedure Code of the Russian Federation refers to the consent of the accused with the charge, and not to the admission of guilt. The expression “confession by the accused of guilt (admission of guilt)” is used more than once in the Code of Criminal Procedure (part 2 of article 77, part 2 of article 273 of the Code of Criminal Procedure of the Russian Federation). The majority of the accused, agreeing with the charges brought, consider this consent as an admission of their guilt, without delving into the subtleties of legal terminology.

But what if the accused, who answers the question of the court: Yes, I agree with the charge, but I do not admit my guilt.

Legal scholars are divided on this point.

So, it is believed that the recognition of guilt is an important condition for the possibility of production in a special order. If guilt is not recognized or is partially recognized, the judge is obliged to terminate the proceedings within the framework of Chapter 40 of the Code of Criminal Procedure of the Russian Federation and appoint a trial in the general manner.

And yet, admitting guilt and agreeing with the prosecution are different actions of the accused, which have different meanings. The admission of guilt contains an element of repentance, the desire to reconcile with society, the victim, characterizes the personality of the accused and in certain cases can serve as a circumstance mitigating responsibility.

The legal aspects of the topic are also highlighted. An admission of guilt may be the basis of an accusation. An admission of guilt made at the preliminary investigation stage, recorded in the prescribed manner and confirmed by other evidence, has a purely evidentiary value. At the same time, the accused, who admits his guilt, may not file a petition for a decision in a special manner. On the other hand, an accused who refuses to give any evidence at the preliminary investigation and, accordingly, does not speak out about his guilt, is not formally deprived of the right to file a petition for a special procedure. The logic is obvious: having familiarized himself with the materials of the investigation, the accused decided that it would be more profitable to use a special procedure, and in this case he must agree with the charge.

Consent with the accusation is a manifestation of optionality, the use by the accused of his rights, which do not have any evidentiary value. This is a refusal to procedurally challenge the charges brought without explanation.

Thus, an admission of guilt is an action of the accused aimed at confirming the fact that he committed this crime, and consent with the charge brought is an action of the accused, expressing his consent to conduct proceedings in a special manner, provided for in Chapter 40 of the Code of Criminal Procedure of the Russian Federation.

The confession of guilt has a material and legal significance, and the consent with the accusation is procedural.

It should be recognized that the court, wishing to protect itself from any undesirable consequences, is unlikely to go for a special procedure in such a situation, but formally the law does not prohibit it from doing so.

let's pay attention to the following. In the case when the accused is charged by the bodies of preliminary investigation and he agrees with the accusation, this means that he admits that he committed a certain crime. A crime, as is known from the theory of criminal law, has its own composition: an object, an objective side, a subjective side and a subject. The subjective side of the crime is formed precisely by guilt, the forms of guilt of the subject of the crime.

In the case when the accused recognizes himself as having committed a certain crime, he automatically recognizes the presence of all elements of the corpus delicti in the act committed by him, including the subjective side. Therefore, it would be somewhat incorrect to say that the accused can agree with the accusation without admitting his guilt in the committed crime.

The practice of applying the OPSR shows that "agreement with the accusation", referred to in Ch. 40 of the Code of Criminal Procedure of the Russian Federation, the law enforcer equates to the confession of guilt by the defendants.

The existing practice of applying a special procedure for the trial in terms of the need for the accused to admit guilt should be recognized as legitimate. However, it seems appropriate to change the normative regulation of this institution and directly provide in the Code of Criminal Procedure of the Russian Federation the need for the defendant to admit guilt in a committed criminal act in order for the criminal case to be considered in a special procedure for judicial proceedings.

The duty of a lawyer to find and prove the existence of extenuating circumstances of criminal punishment for his client. But the offender himself must be aware and aware that a mitigating circumstance can be applied by the court individually for him, based on the motives, personality and other features of the criminal case.
Let us consider in more detail the practice of mitigating criminal punishment for other circumstances, for example, when an admission of guilt is partially or completely a mitigating circumstance.

The Supreme Court allowed to expand the list of mitigating circumstances and adopted a new resolution of December 22, 2015 N 58 "On the practice of imposing criminal penalties by the courts of the Russian Federation".

A situation often encountered by lawyers is when the defendant admits guilt in part or in full. Despite this, it is always difficult to convince the court to mitigate the punishment for committing a crime discovered as a result of the ORM, for other circumstances not directly listed in the Criminal Code of the Russian Federation (CC).
The list of circumstances mitigating criminal punishment is given in Part 1 of Art. 61 of the Criminal Code.
The list of mitigating circumstances established by law is not exhaustive: when sentencing, other circumstances can be taken into account as mitigating circumstances (part 2 of article 61 of the Criminal Code) with mandatory motivation in the verdict, as the Supreme Court previously indicated in paragraph 7 of the resolution of January 11, 2007 No. 2 "On the practice of imposing criminal punishment by the courts of the Russian Federation" .

Anything that can be a mitigating circumstance for the offending person should be used. Separate clarifications in the decision of the Supreme Court are devoted to the surrender. When a person came himself and repented, then it is impossible to measure the punishment according to the highest standard. A confession can be either a written confession or an oral confession.
Moreover, such confessions of guilt should mitigate the punishment even if the person later refused to turn himself in. The rule is this: if the court took into account as evidence the testimony of a person given during the surrender, then the convict is still entitled to a discount in criminal punishment, i.e. application of a mitigating circumstance.
Also, a mitigating circumstance may be active contribution to the disclosure and investigation of the crime. It should be taken into account as a mitigating circumstance if a person provided investigators with information that was previously unknown to them.

The Supreme Court of the Russian Federation and earlier in decisions on specific cases has repeatedly pointed out that in the presence of mitigating circumstances established in the verdict, the imposition of the maximum amount of punishment provided for by the article of the Criminal Code for a specific crime is unacceptable, i.e. reduction of criminal punishment is mandatory.

Now the defense has another landmark decision of the Supreme Court, which legally establishes a mandatory mitigation of punishment for other circumstances, regardless of the fact that the unlawful activities of the defendants were revealed as a result of the work of law enforcement agencies.

The recognition by the defendants of their guilt, accompanied by their testimony about the circumstances of the criminal attack on the victim in the absence of other eyewitnesses at the scene, are mitigating circumstances, regardless of the fact that the unlawful activities of the defendants were revealed as a result of the work of law enforcement agencies, is the basis for leniency, which the Supreme Court clearly articulated in its decision.

Definition of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation of October 28, 2014 N 37-APU14-7 (Extract, full decision of the Supreme Court):

By the verdict of the Oryol Regional Court, K. and L. were found guilty of extorting property on a large scale, and K. was also found guilty of committing, by prior agreement with other persons, robbery with causing grievous bodily harm to the victim, his murder during a robbery.

In the appeal submission, the public prosecutor asked to change the sentence as unfair due to its excessive leniency, pointing out that the court did not properly take into account the nature and degree of social danger of the crimes committed by the convicts and unreasonably recognized as mitigating circumstances L.'s confession of his guilt in full, K.'s admission of guilt in one of the episodes and his partial admission of participation in the murder of the victim. He claimed that the illegal activities of the convicts were revealed as a result of the work of law enforcement agencies.

On October 28, 2014, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation upheld the verdict, the appeal submission was not satisfied, indicating the following.
When imposing punishment, the court took into account the nature and degree of public danger of the crimes committed by the convicts, the degree of their actual participation in the commission of crimes, the specific actions of each of them, personal data, mitigating circumstances and the absence of aggravating circumstances, as well as the impact of the imposed punishment on their correction and living conditions their families.
The reference in the appeal submission to the fact that the court unreasonably recognized as mitigating circumstances the admission of guilt - full or partial, which is not such a circumstance by virtue of law, is untenable.
By virtue of h. 3 Article. 60 of the Criminal Code of the Russian Federation, along with other circumstances, when sentencing, the court must take into account the mitigating circumstances specified in Part 1 of Art. 61 of the Criminal Code of the Russian Federation, as well as recognized as such by the court in the manner prescribed by Part. 2 Article. 61 of the Criminal Code of the Russian Federation.
Thus, the list of circumstances contained in Part 1 of Art. 61 of the Criminal Code of the Russian Federation, is not exhaustive, and the establishment by the court as mitigating circumstances of L.'s admission of guilt and K.'s partial admission of guilt complies with the requirements of the law.
The testimonies given by the convicts about the circumstances of the criminal attack on the victim are the basis of the verdict, and, despite the presence, according to the author of the appeal, at the disposal of law enforcement agencies of other evidence of the involvement of the convicts in crimes, their testimony, due to the absence of other eyewitnesses at the scene, had significant importance for establishing the goals and motives of crimes, the true picture of criminal events, the role and degree of participation of each of the accomplices in the implementation of joint criminal intentions.
The fact that the convicts had a real opportunity to report the crime they had committed earlier, but did not do so, only testifies to the absence of a confession on their part, but does not detract from the significance of other circumstances recognized by the court as mitigating without any violation of the law.
Thus, when imposing punishment, the court correctly considered L.’s confession of guilt and repentance for his deed, K.’s partial confession of guilt as mitigating circumstances, duly motivated L.’s non-appointment of additional punishment, and taking into account all the circumstances established by the court relating to the deed by the convicts and their personality , the punishment imposed on him cannot be considered unjust due to excessive leniency.

The Supreme Court recognized the mitigation of punishment as lawful and justified, pointing out that the confession by the defendants of their guilt, accompanied by their testimony about the circumstances of the criminal offense in the absence of other eyewitnesses at the scene, are mitigating circumstances, regardless of the fact that the unlawful activities of the defendants were revealed as a result of the work of law enforcement organs.
The above decision of the Supreme Court N 37-APU14-7 actually introduces a new basis for mitigating criminal punishment and is a legally significant law enforcement act in the work of lawyers in criminal cases.

First examine the wording of the suspicion

The information you provide is a story about the events as you saw them.

In order to understand why you are suspected of precisely this composition, you need to study how the investigator puts it.

At the moment, you have the status of a suspect, so the decision to initiate a case is the source of information about the case for you.

You must receive a copy of this document, this is your right as a suspect ( clause 1 part 4 46 of the Code of Criminal Procedure ).

This document sets out the so-called "grounds" for initiating a criminal case, these are specific signs that allow qualifying an act precisely under such an article.

After you study the decision to initiate a case: you need to assess what factual circumstances contradict the conclusions of the investigator about the presence of corpus delicti. If you think you can figure it out, do it yourself, but it's better to take this document to a professional defender for analysis.

If it is concluded that there is no corpus delicti in your actions, then it is required that the factual circumstances (speaking of innocence) receive the status of defense evidence, they must be entered into the materials of the criminal case. This is done not by telling the investigator and other participants in the process, but only by investigative actions: confrontations , interrogation of witnesses .

To do this, then you need to file a petition for conducting investigative actions to verify these factual circumstances, it will be difficult for him to refuse the petition ( Part 2 159 Code of Criminal Procedure).

Refusal to admit guilt

Learn the specifics of retracting confessions here: Admission of guilt and proof , its role in the evidence base.

Soft change of readings

Despite the foregoing, it is often necessary to change the testimony.

You need to do it in such a way that:

a)new evidence fit into the overall picture, were integrated with other evidence.

b)did not (completely) contradict the previous data, and did not violate the overall picture of the case, they were precisely a correction, and not a 100% turn.

in)one can continue to recognize the facts (which it is senseless to deny), but to deny their interpretation (intention, motive, purpose).

You can read more here: Reading correction , a thoughtful change (instead of a full turn).

Involvement of a lawyer complicates withdrawal of evidence

In your situation, there is a problem, the signature of a lawyer in the protocol of the procedural action reliably "cements" it, cuts off the option with a further refusal to testify.

That is, such a protocol is evidence that can no longer be challenged on the grounds of inadmissibility. Such a protocol becomes completely protected from the rule Clause 1 Part 2 75 Code of Criminal Procedure.

It is extremely difficult to refuse testimony given with the participation of a lawyer (such a refusal will be critically assessed by the court).

In your situation, the lawyer may have violated the requirement P. 6 The standard, he was obliged to explain the consequences of a guilty plea, but there is no practical point in complaining about a lawyer, it will not do you any good.

Night time

The fact that the interrogation was night time , gives a clue for refusing to testify.

Night actions should be carried out only in cases of urgency (requirement Part 3 164 Code of Criminal Procedure).

This does not mean that the protocol of interrogation can actually be recognized as inadmissible evidence. In practice, the prosecution cannot substantiate the need for night actions with real circumstances, but is limited to general phrases, but the court is always content with them (and takes the side of the prosecution).

That is, one should not overestimate this clue, but still - this somewhat reduces the probative power of this interrogation, and simplifies the refusal of testimony.

How to proceed

It is in my power to clarify the general points, to give exemplary advice (not linked to the specifics of your case unknown to me).

How exactly to refuse testimony - what to refer to, whether it is worth arguing the refusal precisely by the night nature of the interrogation, all this cannot be explained in the format of the answer on the site.

At the moment, any abrupt, hasty actions do not make sense, they are meaningless. The situation develops independently of you.

The next moment when the situation will allow partial control over it (that is, there will be an opportunity for some meaningful action) is the moment of arraignment ( Part 2 172 Code of Criminal Procedure). You must be interrogated immediately after arraignment ( Part 1 173 Code of Criminal Procedure).

This moment is the key to changing the testimony, you should already be prepared for it (think about how to argue the reason for giving the old testimony). You must also have written petitions to the investigator on the conduct of investigative actions (

Non-recognition by the defendant of his guilt is not provided for by law as an aggravating circumstance, and reference to this circumstance is a violation of the law.

According to the verdict, R. (previously convicted) was convicted under Part 3 of Art. 30, pp. "a", "g" part 3 of Art. 228.1 of the Criminal Code of the Russian Federation, that is, for attempted illegal sale of narcotic drugs on an especially large scale, organized by a group.

When resolving the issue of punishment, the court referred as aggravating circumstances to the fact that R. did not admit guilt and committed the crime as part of an organized group.

Meanwhile, according to part 2 of Art. 63 of the Criminal Code of the Russian Federation, if an aggravating circumstance is provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation as a sign of a crime, it in itself cannot be taken into account again when sentencing.

In addition, the defendant's non-recognition of his guilt is not provided for by law as an aggravating circumstance and therefore cannot be taken into account when appointing him as such.

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation excluded from the verdict the indication that R. had committed a crime by an organized group and that he did not admit his guilt as an aggravating circumstance.

Definition N 20-UD15-1

2. The mere fact that a person admits his guilt cannot be regarded as a mitigating circumstance, provided for in paragraph "i" of Part 1 of Art. 61 of the Criminal Code of the Russian Federation. Active contribution to the investigation of a crime consists in the active actions of the perpetrator, aimed at cooperation with the investigating authorities and committed voluntarily, and not under the pressure of the available evidence.

According to the verdict of the court, K. was convicted under paragraphs. "a", "b", "l" part 2 tbsp. 105 of the Criminal Code of the Russian Federation to 18 years in prison, according to paragraphs. "c", "e" part 2 of Art. 111 of the Criminal Code of the Russian Federation to 6 years in prison, under paragraph "a" h. 2 Article. 282 of the Criminal Code of the Russian Federation to 3 years in prison and under other articles of the Criminal Code of the Russian Federation. Based on ch. 3 and 4 art. 69 of the Criminal Code of the Russian Federation on the totality of crimes, by partial addition of punishments, a final punishment was imposed in the form of imprisonment for a term of 24 years.

In the appeal, the public prosecutor asked to change the sentence due to the excessive lenientness of the punishment imposed by K., believing that the court of first instance unlawfully took into account the admission of guilt by the accused at the pre-trial stage and active contribution to the investigation of crimes as extenuating circumstances.

The Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation changed the verdict, motivating its decision as follows.

As follows from the verdict, recognizing in accordance with paragraph "and" h. 1 and h. 2 Article. 61 of the Criminal Code of the Russian Federation, mitigating the punishment of K. by admitting guilt at the pre-trial stage and actively contributing to the investigation of crimes, the court proceeded from the fact that at the initial stage of the preliminary investigation, K. declared his guilt in the deed and when giving testimony, set out in the verdict as evidence of his guilt, voluntarily told not only about the details of his criminal actions, but also explained the reasons, motives for their commission, reported other circumstances significant for the criminal case, which contributed to its investigation and contributed to the appropriate legal assessment of the actions of the defendant.

However, this conclusion of the court of first instance cannot be accepted.

According to the law, active contribution to the investigation of a crime consists in the active actions of the perpetrator, aimed at cooperating with the investigating authorities, and can be expressed in the fact that he provides the indicated authorities with information about the circumstances of the crime, gives truthful and complete testimony that contributes to the investigation, submits to the investigating authorities information previously unknown to them. At the same time, these actions must be committed voluntarily, and not under the pressure of available evidence, aimed at cooperation with law enforcement agencies.

There are no such circumstances in the present case.

The Court of First Instance did not give any convincing reasons in its verdict, on which it came to the conclusion that K. actively, as required by the criminal law, contributed to the investigation of crimes.

As established by the verdict and follows from the case, the crimes were committed on February 9, 2014 at 2:20 pm.

The decision to initiate a criminal case and accept it for proceedings was issued on February 9, 2014 at 2:50 pm. At that moment, the identity of K. had already been established, and a criminal case had been initiated against him. At 15:00, an inspection of the scene was started, at 16:06, a video recorder was seized, which fully captured K.'s actions in the temple.

K. was detained on the basis of paragraph 1 of part 1 of Art. 91 of the Code of Criminal Procedure of the Russian Federation, which provides that a person was caught while committing a crime or immediately after it.

During interrogations as a suspect, K. admitted his guilt and testified about the motives for committing crimes, stating that he did not repent of his deeds, these were his firm convictions. Subsequently, K. also admitted his guilt, confirmed his earlier testimony, stating that he no longer wanted to speak, and then refused to explain.