Say a word about criminal proceedings...

The All-Russian Criminal Law Forum held in Samara discussed current issues of law enforcement and defined common approaches to their solution

The event, held on the initiative of Dmitry Taraborin, Violetta Volkova, Vyacheslav Vasilevsky, Murat Karabashev, with the support of the Federal Chamber of Advocates of the Russian Federation and the Chamber of Advocates of the Samara Region, brought together over 100 people, representatives of the deputy and judicial corps, expert and journalistic communities, the bar association and students, on one discussion platform.

The participants, united by a common desire to improve law enforcement practice, shared their views on the realities of the Russian criminal law system, found common ground and developed effective mechanisms for interaction.

Lawmaking

Opening the first panel discussion, its moderators: Dmitry Taraborin, Advisor to the Federal Chamber of Lawyers of the Russian Federation, Vice President of PASO, and Evgeny Rubinstein, PhD in Law, attorney, Advisor to the Federal Chamber of Lawyers of the Russian Federation, expressed the intention of attorneys to directly communicate with representatives of the legislative branch so that the attorney corporation could most effectively realize its serious intellectual potential in the field of legislative initiative.

Sardana Avksentyeva, State Duma deputy, deputy head of the New People faction (this faction was the first in Russia to propose a bill on obstructing legitimate advocacy activities – author's note) took part in the discussion. She demonstrated her readiness for direct open communication with the expert community:

- Deputies and senators are perhaps the most accessible among the subjects of legislative initiative. I came to Samara in this status.

I absolutely agree that we need to build a dialogue. Practitioners who study and apply current legislation in their daily work are able to discern legislative gaps, collisions and contradictions that are not obvious to everyone else, of which there are many, and are able, due to their education, qualifications and professional training, to approach this consideration systematically. If we want to change something, we must discuss it.

Among the trends in law enforcement that worry the bar, caused by the "shortcomings" of current legislation, colleagues named a noticeable decrease in the role of the procedural form,

"In work on criminal cases, a situation is increasingly encountered when a norm of procedural law that provides for the performance of an official action or the need to make a certain procedural decision in the event of a violation is not considered a violation entailing legal consequences. For example, failure to provide the accused with the opportunity to testify after the charge is brought is no longer an unconditional substantial basis for overturning the sentence"

loss of balance of costs and counterweights in criminal proceedings,

"Prosecutor's supervision has lost its power, and judicial control, designed to protect a person, does not work as envisaged by the legislator. As a result, we are effectively deprived of the opportunity to argue with the prosecution at the stage of preliminary investigation.
Article 124 provides for the possibility of appealing procedural decisions in a departmental manner. However, this is absolutely meaningless, since any charge is now agreed upon with the head of the investigative body. There is the possibility of a prosecutorial appeal, but the prosecutor's office cannot cancel the decision to bring in as an accused. And within the framework of judicial review, this is also impossible"

lowering of standards of criminal proceedings, non-working criminal procedural rules related to the interpretation of the concept of "entrepreneurial activity",

"Entrepreneurial activity means only legal, in the opinion of the prosecution, actions of participants in civil turnover"

outdated legislative norms establishing the amount of theft and the qualification of the crime as unqualified fraud,

"A particularly large amount, as 20 years ago, is still considered to be 1 million rubles, which does not take into account inflation at all"

the attitude of the courts to the issue of choosing a preventive measure,

"The position of the Supreme Court is reflected in paragraph 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 41 of December 19, 2013: when choosing a preventive measure, the court must take into account the behavior of the accused after committing a crime and his admission of guilt. This is openly used by opponents to exert pressure in order to obtain testimony (confessions of the suspect himself or testimony of other persons)"

the situation with forensic examinations: excessive role in the process, departmental subordination of experts, long periods of forensic examinations, the possibility of conducting examinations on the reliability of testimony,

"If testimony is currently assessed by comparison with other evidence, then with the adoption of the new norm, the court will be reduced to checking the admissibility of the interrogation protocol and the expert's report"

the absence of compensation mechanisms for persons subject to rehabilitation and mechanisms for bringing the guilty to justice,

"How are rehabilitated persons compensated for the time spent on investigative actions? How much does 1 day in a pretrial detention center or under house arrest "cost"? How are the amounts of moral damages determined? Why are the investigative and supervisory authorities that made mistakes not held accountable for this?"

absent mechanisms for collecting damages from persons covered by Article 78.1 of the Criminal Code of the Russian Federation, which leads to a violation of the rights of victims in the event of the death of the perpetrator, problems with recognizing evidence as inadmissible, etc.

Sardana Avksentieva shared her observations:

- I draw attention to the obvious accusatory bias in the consideration of cases. According to statistics, we seem to be in the pan-European trend - less than 1% of acquittals, but half of them are thrown out at the appeal stage. For comparison: in Germany, 40% of criminal cases are terminated before they reach the court, that is, the preliminary investigation has a different quality. Many lawyers and legal experts agree that our criminal procedure legislation in the existing text version is quite liberal. But when law enforcement begins...

Speaking about proof in criminal proceedings, I will note the increased legal force of testimony from law enforcement agencies, as well as the fact that the expertise of departmental expert organizations affects the degree of objectivity.

Identifying existing imperfections in criminal proceedings, forum participants proposed solutions to problems. For example, everyone supported the idea of ​​creating a single independent federal expert center (as an option, on the basis of the Ministry of Justice of the Russian Federation).

Sardana Avksentieva literally took note of all the questions and proposals voiced by the lawyers, and explained how lawyers can establish more effective interaction with representatives of the legislative branch.

According to Evgeny Rubinstein, the situation in terms of building a constructive dialogue with the authorities is gradually changing for the better: “Resolutions of the Plenums of the Supreme Court are sent to the FPA, experts give their proposals, participate in the meetings. Our proposals are taken into account - this is a fact. The Constitutional Court often sends requests to the FPA to give an opinion on this or that issue.” Legislators take into account the opinion of the legal community, which cannot but please.

Do NOT ask questions to the court!

During the second panel discussion on the topic of "Violation of the Right to Defense in Court Proceedings", which aroused genuine interest in the audience, lawyers had a unique opportunity to ask questions to a retired judge, senior lecturer in the Department of Criminal Procedure Law of the North-West Branch of the Russian State University of Justice, Evgenia Zeidlits, who has experience working in court with the participation of jurors, and has been working at this institution for more than 30 years. Evgenia Georgievna not only told lawyers what the presiding judge pays attention to when considering a criminal case with the participation of a jury and what jurors should be guided by when discussing and delivering a verdict; not only warned lawyers against various mistakes made when working in the consideration of criminal cases with the participation of a jury; but also inspired the forum participants with her ardent faith in a jury trial, the right to which, both for the accused and for citizens, is guaranteed by the Constitution of the Russian Federation.

Sharing the optimism of E.G. Zeidlits that a jury trial will exist (mine - will not disappear), the moderator of the discussion Andrey Karnomazov, PhD in Law, Associate Professor, PASO lawyer, Managing Partner of the Pravy Bereg Law Firm, could not help but voice the difficulties he had noted.

- In a jury trial, you can get both deep satisfaction from genuine competition and deep disappointment when you encounter manipulation. In my personal practice, I have observed the following cases, which I define as manipulation: an acquittal is rendered, but not announced (the panel is sent for a break under any pretext, then appears in an incomplete composition and is dissolved); far-fetched challenges to jurors, including due to the fact that they are detained by traffic police officers and taken away for examination; among the jurors there were people who were not candidates (that is, there is a gray area in the formation of jurors). In my opinion, a sure sign of an impending manipulation is (closer to the debate and after the debate) the delay of the process, when the court hearing is postponed on far-fetched grounds.

The comments and recommendations of the judge received by the participants in the discussion were all the more valuable.

Remember that any violations result in the cancellation of the sentence based on the jury's verdict. Therefore, often after an acquittal, there is a guilty verdict due to a violation of the rules of conduct in court hearings. These rules and the procedure of the jury trial must be studied in advance.
Pay attention to the formation of the panel of assessors, since an illegal composition of the panel will result in the cancellation of the verdict. The panel is selected by random sampling from preliminary lists. And how do these preliminary lists appear? You can ask to provide information on the formation, although the procedure is not prescribed either in the law or in the instructions. Many questions arise here: what is considered participation (a situation when a juror participated in the trial before the jury retired to the deliberation room, but left the jury and did not participate in the verdict), and how the terms of this participation are determined (a calendar year or by analogy according to the rules of Article 128 of the Criminal Procedure Code of the Russian Federation), etc. In any case, when forming a jury, one should be guided by Article 119 of the Constitution of the Russian Federation, the Law on the Status of Judges, and the provisions of the Federal Law on Jurors.
It is unacceptable to argue with the presiding judge. You can only state your objections to his actions in the absence of the jury.
Jurors observe the parties throughout the entire process, including looking at their appearance, meaning the dress code required when attending a court hearing.
A jury is a judge of fact. It is important to establish the factual circumstances of the case, which include the motive for committing the crime, the motive for the crime. When asking questions to the persons being interrogated, they must be formulated in such a way that they concern the facts, not the procedure. The latter are removed by the presiding judge, and a large number of removed questions influence the jury not in favor of the defense. In a trial with the participation of jurors, the adversarial nature begins from the very beginning of the trial, that is, with the opening statements of the parties. Therefore, it is necessary to immediately determine the subject of proof (what you will prove to the jury) and the limits of proof. With all your statements, try to help the jury answer the 3 main questions facing them. The following position of the lawyer is possible: the crime was committed, but it was not committed by his client. The statement of the lawyer "My client will say his position" is regarded as a violation of the procedure. Throughout the trial, it is necessary to confirm the position that you defined in the opening statement. Do not try to blame opponents, but express the defense position as clearly, simply and understandably as possible for everyone.
The meaning of Article 51 of the Constitution of the Russian Federation is not to testify against yourself, your spouse and close relatives, and not to remain silent. In order for the presiding judge and the jury not to have any doubts, it seems that it is better for the defendant to declare his non-involvement in the crime.
The question of the reliability of evidence is decided only by the court. No examination is needed to determine whether someone's testimony or evidence is worthy of belief. It seems that a polygraph is inadmissible evidence, since it proves awareness, and it is necessary to prove involvement.
The law does not contain provisions that limit the right of the defendant to bring to the attention of the jury a position refuting the accusation, i.e. to refer to the commission of a crime by another person. But in practice, the situation is different. We can conclude: yes, the defendant can talk about it, and the lawyer is not quite categorical - he must defend his position that this crime took place, but was not committed by his client. Present evidence not that the crime was committed by another person, but evidence that the crime was not committed by the defendant.
Peculiarities of using evidence related to the motive of the crime. Negative information about the person and the motive of the crime often overlap. The law does not prohibit investigating the motive of the crime, and it can also be that the defendant knew, for example, about the criminal record of the victim.
Many violations related to the influence of the parties. Thus, information is often announced that cannot be brought to the jury. In accordance with paragraph 3. part 2. Art. 333, the jury can communicate with the presiding judge, but only within the framework of the trial in the presence of the parties, publicly. It appears that, according to the meaning of the entire Chapter 42, which provides for proceedings with the participation of jurors, extra-procedural communication between the presiding judge and the jurors constitutes influence on them, which is prohibited by law.

The jury very often addresses written questions to the presiding judge. If he believes that the question does not relate to the factual circumstances, then the question is not asked to the persons being questioned. The content of the questions is not reflected anywhere, although, as it seems, the parties should familiarize themselves with all the questions in a timely manner, and not after the consideration of the criminal case. This will help to eliminate the ambiguities that the jury has.

The debate is the result of all the work, where you must not forget your opening statement, what you promised the jury, where you stated your position and insist on it throughout the trial, presenting evidence of the position. In the debate, talk about the result, about what you have proven. The remark is not a continuation of the debate, it is a response to the prosecutor's remark. In an appeal against a jury verdict, you do not attack the prosecution, but rather set out significant violations (you need to thoroughly understand Article 389.17 of the Criminal Procedure Code of the Russian Federation and Article 389.25 of the Criminal Procedure Code of the Russian Federation): for example, "...thereby, the defendant was deprived of the opportunity to file an unmotivated/motivated challenge."
In a court hearing (when legal issues are resolved at the presiding judge's table), you can state the need to agree on a position with the defendant. This is reflected in the protocol.
The lawyer must convince the court which evidence is worthy of belief, sow doubts about other evidence (how it is refuted, excluding the method of obtaining it). For example: "You can judge the veracity of a witness's testimony when you know the identity of this witness." The law does not prohibit the examination of the identity of a witness or victim, which is confirmed by the legal position of the Constitutional Court.
The jury does not know the case materials. We have only 3 questions: proof of the event, proof of involvement, and innocence. A verdict is always about innocence! In my opinion, another wording should be added to the law: a guilty verdict without sentencing (meaning cases with affirmative answers to questions about the proof of the act and involvement and a negative answer to the question about guilt)..
A verdict is considered adopted when it is checked by the presiding judge and transferred for announcement. An unannounced verdict must remain in the deliberation room.
There must be grounds for dissolving the panel: the jury cannot continue to participate.
Follow the procedure and then you will get what you want!

The Fourth Estate

The third panel discussion was devoted to the issues of covering high-profile criminal cases in the media, the correct use of special terms and formulations, and objective presentation of material. Its moderator was Artur Bolshakov, lawyer, expert at the Commissioner for the Rights of Entrepreneurs of Moscow, speaker of the Statut Law School.

He emphasized the role of journalism, quoting the statements of the luminaries of the legal profession (“If journalists had not recorded the speeches of brilliant outstanding pre-revolutionary lawyers, they would have disappeared, we would not have known that this was possible, that this miracle was possible in principle…”), told colleagues about the need to cooperate with the media, whose representatives can and should be given comments on the progress of the trials.

Ekaterina Tyutyunnikova, lawyer of the Moscow City Bar Association, mediator, editor of the “Cabinet” section of the “Russian Lawyer” magazine, expert of the TOP media, speaker of legal conferences, winner of the “Best in Law 2024” competition, reported on the possible participation of lawyers in the publication’s projects.

Emilia Gabdullina, correspondent of the Kommersant newspaper, opened up the journalistic “kitchen” to lawyers, spoke about the rules of journalistic ethics. As part of the development of cooperation and for the purpose of competent coverage of criminal cases, she proposed that the Federal Chamber of Lawyers of the Russian Federation prepare memos for journalists.

Experts

Useful practical information was presented in the reports.

Evgeny Tonkov, lawyer, PhD in Law, Chairman of the Commission for the Protection of Professional Rights of Lawyers of the Leningrad Region Bar Association, Associate Professor of the North-West Institute of Law of the Russian Presidential Academy of National Economy and Public Administration

gave a profound justification for the fact that the Russian legal system (post-Soviet, related to the socialist system of legal families and, therefore, different from the systems of continental or case law) has standards of proof; spoke about the peculiarities of the Russian legal order, which he terminologically defined as legal realism, and explained how court decisions are made. The speaker recommended that lawyers submit evidence immediately, as early as possible, and warned colleagues against a frequently made mistake - passivity in refuting the opponent's arguments.

Yuri Kirilenkov, doctor, forensic expert, lawyer, postgraduate student at the University named after Griboyedov in the direction of "criminal and legal sciences" devoted his speech to the peculiarities of applying the knowledge of a specialist in criminal proceedings when challenging conclusions about the causes of death and the severity of harm caused to the health of the victim. The lecturer called on lawyers to actively use the institute of a specialist (to introduce a specialist into the criminal process for questioning the expert) and suggested how lawyers can do this competently, achieving the set goals of defense.

Artur Bolshakov, lawyer, expert at the Commissioner for the Rights of Entrepreneurs of Moscow, speaker of the law school "Statut" demonstrated by personal example the skills of oratory, reminded colleagues of examples of the art of advocacy, called on them, like the masters, to use non-trivial methods of defense, treating advocacy as an art.

Concluding the debut Zhigulevskaya session, Dmitry Taraborin warmly thanked all the participants, who unanimously confirmed that the dialogues really took place.

Special thanks to colleagues who took an active personal part in organizing and holding the forum: Dmitry Taraborin, Violetta Volkova, Vyacheslav Vasilevsky, Murat Karabashev, as well as PASO employees Rumiya Abdryakhimova and Elena Salnikova.

PASO Press Center