Moscow: +7 495 234 4959 Saint Petersburg: +7 812 740 5823 London: +44 (0)20 7337 2600

Incorrect Evidence. Legal Information Agency, 22 December 2017

Evidence received with minor offense of law has been allowed to be considered in criminal cases. Such directions have been presented by the Supreme Court of Russia. Experts think this may cause abuse.

22.12.17. LIA - Constitution of Russia and the current Criminal-Processual Code of RF (CPC) prohibit to use evidence received with offense of federal law in administration of justice. At the same time a defendant has the right to demand interrogation of a witness and asking him/her questions. It is not allowed to make public the given before testimony of an alive, healthy witness who is a resident of the country.

Law and Disorder

Resolution of the Plenum of the Supreme Court of Russia adopted on the 19 October generalizes criminal cases practice consideration. Explanations of the controversial issues which are de-facto obligatory to all servants of Themis are meant to form a uniform approach and avoid mistakes. The higher authorities are sure that "consideration of a criminal case in strict accordance with the legal procedure which meets criteria of a fair court trial is a reliable guarantee of defense of the rights and lawful interests of people and organizations suffering from criminal offense, and of a person from unlawful and baseless accusations, conviction, limitation of rights and freedoms".

But some places in the new document cause doubts among specialists. Thus, evidence is recognized unacceptable particularly if there was material infringement of the stated procedure of its collecting and securing, if it was carried out by an improper person or organization, or as a result of actions not provided by processual norms. But earlier the Supreme Court of Russia did not allow receiving materials regardless of the "significance" of infringements in the process of their collection, and that meant rejection of any unlawfully received evidence. For example, results of operational-search activities connected with limitation of the constitutional right of citizens to the privacy of correspondence, or trespassing without a court decision, were recognized unacceptable. Arbitration courts often didn't accept materials of the so called "control purchases" carried out by taxation or other supervisory organizations, which proved among the others the non-use of cash machines and other offenses. "Organizations carrying out operational-research activities are not allowed to incite, incline, stimulate directly or indirectly to commit unlawful actions (provocations)" - stated the servants of Themis (LIA published detailed information about such decisions - Operation '"Provocation").

However, on practice even the higher authorities often don't find any infringement in some formal "flaws" in the evidence presented by the law-enforcement. For instance, inspection ,records without an indication of signature of one of the witnesses on  the packages with the bullets and cartridge-cases seized on the scene of crime were accepted and that allowed to sentence Suleyman Edigirov accused of attempt to murder a policeman to 14 years of imprisonment.

At the same time, some experts suppose that the new explanations of the Supreme Court of Russia won't allow to accept evidence received even with minor infringement. Thus, Sergey Nasonov, adviser of the Federal Chamber of Advocates, who is a member of a workgroup on working out a draft resolution, pays attention to the introductory word "particularly". "Thus, material infringements are given as an example, but not an exclusive pretext to recognize evidence unacceptable", - states the advocate.

The defense will be able to demand rejection of the unlawfully received materials before the beginning of the case consideration and during the preparation part of the hearing. Alexander Zamashnyuk, judge of the Supreme Court of Russia, says that there has been a controversial practice till now: "If a court has not in fact started consideration of a case yet, how will it recognize evidence unacceptable? Some judges left it without consideration and suggested appealing later. Others postponed consideration of the case. The third refused in its unsatisfaction", - stated Alexander Zamashnyuk.

A Virtual Witness

Besides, the higher authority allowed to make public testimonies of those witnesses who avoid attending proceedings. The servants of Themis are only required to "take all necessary measures in order to" summon such a person. The resolution emphasizes that "if these measures do not result in bringing a witness to the court trial, the court can make public the given before witness's testimony and the materials containing recording of this testimony attached to the interrogation record, with the consent of the parties".

Nevertheless, the current Criminal-Processual Code of the Russian Federation provides a limited number of cases which allow to examine recordings of an absent witness: if the witness is dead, seriously ill, absent in the country, .his/her whereabouts is unknown, or a natural disaster prevents him/her from being present at the process. The European Court on Human Rights (ECHR) also admits that the right of an accused to hear all evidence against him/her in the open hearing is one of the guarantees of a fair trial, taking into consideration the requirement for competitiveness. I.e. the defense has to provide an opportunity of cross-examination to the court. "The absence of a witness should be well-grounded (reasonable), and the prosecution should make sufficient efforts (be persistent enough) to summon key witnesses", - suppose the servants of Themis from Strasbourg. Disclosure of the testimonies of the unavailable or secondary witnesses is possible only if the accused can ask them questions or challenge credibility of this evidence at the pre-trial stage of the case.

Until now the servants of Themis usually kept to the norms of the processual law and conclusions of the ECHR. For example, Larisa Semionova, judge of the Zamoskvoretsky District Court of Moscow, rejected a request of the prosecution to announce the testimony of the head of the oil company "Rosneft" Igor Sentchin during the preliminary investigation, while considering a high-profile case against the former minister of economic development Aleksey Ulyukaev. Nevertheless, ignoring four summons by this witness did not prevent  the court from passing a sentence. But the President of Russia Vladimir Putin did not find any infringement of law in this action of the head of the big corporation.

Note

Last year Russian courts 'passed decisions on more than one million people, almost 74 per cent were found guilty, 1.6 per cent  were acquitted, prosecution of the rest is stopped on non-rehabilitation circumstances.

Opinions

Yury Pilipenko, President of the Federal Chamber of Advocates

Possible infringements of the law in the process of collecting evidence are not graded by the degree of materiality neither in the Constitution of Russia, nor in the Criminal-Processual Code. The term "materiality" is purely estimative and does not possess any, even frame, criteria (apart from the term "recoverable infringements"). In practice, such explanation will cause arbitrariness on the part of judges, when one judge considers something an infringement, and another one not.

It is also stressed that one of the most urgent problems is the extensive application of the vicious "technical fault" doctrine by courts, when every deviation from the processual form of evidence can be regarded exactly in that way. The above mentioned explanation will lead to more frequent use of this doctrine and gradual degradation of the institute of admissibility of evidence, which is already in poor condition.

Aleksey Dobrynin, Partner, Head of Criminal-Legal Practice of Attorneys at Law Pen & Paper

Every peace of evidence received with infringement of the law is unacceptable. Nevertheless, the Supreme Court clarified in its resolution that infringement should be material. Such explanation may lead to the vicious practice of admitting obviously unacceptable evidence by courts.

A witness cannot miss the court trial without a grave excuse. Otherwise he/she may be fined up to 2.5 thousand roubles or brought to court by force.

In practice, a witness not always confirms his/her testimony given before at the preliminary stage of investigation. The State Prosecutor is interested in the announcement of it without interrogation during the trial. That is why the necessity to take comprehensive measures in order to summon witnesses provided by the resolution of the Session of the Supreme Court of Russia, may dramatically strengthen position of the defense and equalize competitiveness of the parties in the process.