Androsenko N., associate professor of the Department of Criminal Procedure, Moscow University of the Ministry of Internal Affairs of Russia.

According to the Code of Criminal Procedure of the Russian Federation, a procedural decision is a decision made by the court, prosecutor, investigator, inquirer in the manner prescribed by law (clause 33 of article 5). Criminal procedural legislation defines the grounds and conditions for making a particular procedural decision, i.e. all the circumstances surrounding the possibility of making such a decision.

The recognition by the suspect or accused of his guilt in committing a crime is not indicated as a condition for making any procedural decision. The legislator is very careful when using the wording “admission of guilt”. This position of the legislator is explained by a revision of the attitude towards the admission of guilt by the suspect or accused. Proving guilt by any means was one of the postulates of the inquisition process, in which the “queen of evidence” that determined the truth of the verdict was the person’s admission of guilt. Modern criminal procedural legislation has refused to attach such significance to “confession” testimony.

Without disputing the danger of exaggerating the role of recognition by a suspect accused of his guilt in committing a crime, we believe that in some cases it should be established as a necessary condition for making a number of procedural decisions. For example, when deciding to consider a criminal case in a special manner provided for in Chapter. 40 Code of Criminal Procedure of the Russian Federation.

The confession of guilt by the accused as a necessary condition of a special order is considered by A.S. Alexandrov, N. Dubovik, I.L. Petrukhin and others. They believe that if guilt is not recognized or is partially recognized, the judge is obliged to terminate the proceedings under Chapter. 40 of the Code of Criminal Procedure of the Russian Federation and schedule a trial in accordance with the general procedure<1>.

<1>See: Alexandrov A.S. Grounds and conditions for a special procedure for making a court decision if the accused agrees with the charge // State and Law. 2003. N 12. S. 48 - 49; Petrukhin I. The role of the confession of the accused in criminal proceedings // Russian justice. 2003. N 2. S. 24 - 26.

A.A. takes a different position. Shamardin and M.S. Bursakov, who believe that agreeing with the accusation is not identical to admitting guilt, it follows that the accused who agreed with the accusation may not admit his guilt in committing a crime<2>. Law enforcement practice, in their opinion, distorts the norms of Chapter. 40 of the Code of Criminal Procedure of the Russian Federation, considering the concepts of “agreement with the prosecution” and “admission of guilt” as identical. This accordingly implies that in order for a special trial to proceed, the accused must fully admit his guilt. The Code of Criminal Procedure leads to the erroneous conclusion that guilt within the framework of this type of proceeding is “a priori considered proven”<3>, this “gives the confession of guilt an unjustifiably high role in proof, directs the investigative authorities to obtain such a confession at any cost, so that in the future it is possible to obtain an almost guaranteed result in the form of a guilty verdict, even if other evidence in the case is clearly insufficient to refute the presumption of innocence "<4>.

<2>See: Shamardin A.A., Bursakova M.S. On the issue of the legal nature of the special procedure for judicial proceedings and the problems of its improvement // Russian Judge. 2005. N 10. P. 14.
<3>See: Khalikov A. Issues arising during a special procedure for judicial proceedings // Russian justice. 2003. N 1. P. 64.
<4>Shamardin A.A., Bursakova M.S. Decree. op. P. 14.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 5, 2006 N 60 “On the use by courts of a special procedure for the trial of criminal cases” explains that the charge with which the accused agrees when filing a petition for a verdict without a trial in the general procedure should be understood the factual circumstances of what the accused did, the form of guilt, the motives for committing the act, the legal assessment of the act, as well as the nature and extent of the harm caused by the act of the accused<5>. The circumstances to be proven (including the form of guilt and the guilt of a person in committing a crime) are reflected in the charge brought. Therefore, we believe that agreement with the charge implies an admission of guilt in committing a crime.

<5>See: Resolution of the Plenum of the Supreme Court of the Russian Federation of December 5, 2006 N 60 “On the use by courts of a special procedure for the trial of criminal cases” // BVS RF. 2007. N 2. S. 2 - 4.

In addition, the Code of Criminal Procedure of the Russian Federation does not contain a requirement to find out whether the accused agrees or disagrees with the charge, but obliges the investigator to find out from the accused whether he pleads guilty. This question, according to Art. 173 of the Code of Criminal Procedure of the Russian Federation, the investigator asks at the beginning of the interrogation of the accused, records his answer, certified by the signature of the accused in the interrogation protocol. The Code of Criminal Procedure of the Russian Federation does not provide for a further resolution of this issue anywhere.

We believe that the admission of guilt by the accused should be a necessary condition for the consideration of a criminal case in a special procedure, since one of the consequences of such a simplified procedure is a significant improvement in the situation of the accused himself<6>. We believe that in this case, a mitigation of the defendant’s sentence is possible only if he has positive post-criminal behavior (which indicates his lower social danger). Such a confession must be reflected in the materials of the criminal case (for example, in the protocol of interrogation of the accused). Failure to admit guilt by the accused or partial admission of guilt while agreeing with the charges brought indicates that the accused does not want to argue, makes concessions, but still considers himself innocent. Since the consideration of the case in a special manner ends with a guilty verdict (less often - termination due to reconciliation with the victim, expiration of the statute of limitations, amnesty, refusal of the state prosecutor to charge (if this does not require an examination of the evidence collected in the case and the factual circumstances do not change)<7>, but never by an acquittal), such non-recognition should force the judge to examine all the evidence available in the criminal case, and, therefore, refuse to satisfy the petition for consideration of the case in the manner prescribed by Chapter. 40 Code of Criminal Procedure of the Russian Federation.

<6>In accordance with Part 7 of Art. 316, the amount of punishment imposed on a convicted person when considering a case in a special order should not exceed two-thirds of the maximum term or the amount of the most severe type of punishment provided for the crime committed.
<7>See: Resolution of the Plenum of the Supreme Court of the Russian Federation of December 5, 2006 N 60 “On the application by courts of a special procedure for the trial of criminal cases” (clause 12) // BVS RF. 2007. N 2. S. 2 - 4.

We do not agree with A.A. Shamardin and M.S. Bursakova that the accused’s recognition of his guilt as a necessary condition for the special procedure of the trial entails an exaggeration of the role of the accused’s confession. Because, firstly, according to the requirement of the law, such a confession must always be confirmed by a body of evidence; secondly, the law does not relieve the judge of the obligation to make sure that the defendant’s confession is not unfounded, but is supported by other evidence. The judge has the opportunity to reject the defendant’s request and consider the case in the general manner (Part 3 of Article 314 of the Code of Criminal Procedure of the Russian Federation).

In connection with the above, we propose Part 1 of Art. 314 of the Code of Criminal Procedure of the Russian Federation shall be stated as follows:

"1. The accused has the right, with the consent of the public or private prosecutor and the victim, to petition for a verdict without a trial if he admits his full guilt in the crime charged to him, the punishment for which, provided for by the Criminal Code of the Russian Federation, does not exceed 10 years of imprisonment ".

In addition, the admission of guilt by a person, in our opinion, is a mandatory condition for the termination of criminal prosecution (case) in connection with active repentance and the termination of a criminal case in connection with the reconciliation of the parties, although such a condition is not directly provided for in the legislation.

By active repentance, the authors understand the voluntary and active actions of the person who committed the crime, expressed in full recognition of his guilt, which is objectively confirmed by confession or other socially useful actions<8>.

<8>Savkin A.V. Methods and tactics of proving active repentance of the accused during the preliminary investigation and inquiry. M., 1996. P. 4; Shcherba S.P., Savkin A.V. Active repentance for a crime: A practical guide / Under the general. ed. S.P. Shcherba. M., 1997. P. 16.

According to A.V. Endoltseva, “an admission of guilt in the cases under consideration expresses the internal, mental attitude of a person to the act and consists in the awareness of its wrongfulness, the expression of regret about the criminal act committed by him and the harm caused, which is confirmed by voluntary positive post-criminal actions aimed at preventing, eliminating or reducing the severity of harmful consequences of the crime or providing assistance to law enforcement agencies in solving and investigating this and other crimes"<9>.

<9>Endoltseva A.V. Institute of exemption from criminal liability: legislative and law enforcement problems. dis. ... doc. legal Sci. M., 2005. P. 199.

The repentance of the accused necessarily includes his admission of guilt. Thus, admitting one’s guilt is an obligatory element of active repentance and belongs to the socio-moral, psychological category, to the subjective signs of active repentance. However, to terminate criminal prosecution due to active repentance, a mere admission of guilt is not enough. Positive post-criminal behavior of a person is necessary, expressed in confession, assistance in solving the crime (providing active assistance to law enforcement agencies in identifying all factual circumstances, in identifying and exposing accomplices, in identifying instruments and objects of the crime, etc.), compensation for damage caused, preventing the perpetrator from the harmful consequences of the crime committed. The combination of these conditions allows us to conclude that exemption from criminal liability is provided for in the law due to the fact that there is no point in subjecting a specific person to criminal liability. In these cases, the purposes of punishment provided for in Art. 43 of the Criminal Code of the Russian Federation, can be achieved without further implementation of criminal liability<10>.

<10>Gorzhey V.Ya. Active repentance: problems of law enforcement // Russian investigator. 2003. N 4. P. 18.

As for the termination of a criminal case in connection with the reconciliation of the parties (Article 25 of the Code of Criminal Procedure of the Russian Federation), the authors’ opinions regarding the obligation in this case for the suspect or accused to admit his guilt in committing a crime differ. So, V. Bozhev, O.B. Vinogradova, A.V. Endoltseva, I.L. Petrukhin, B.B. Samdanova and others consider the admission of guilt by the suspect or accused to be a mandatory condition for the termination of the criminal case in connection with the reconciliation of the parties. M.A. holds a different point of view. Galimova, S.P. Zheltobryukhov and others.

The latter believe that the fact that the accused does not plead guilty (or partially admits guilt) does not mean that the parties have not reconciled or the harm has not been made up for. The defendant’s failure to admit his guilt should not prevent the subjects of a criminal case from exercising their right to reconciliation.<11>.

<11>Galimova M.A. Termination of a criminal case due to reconciliation of the parties at the preliminary investigation stage. Author's abstract. dis. ...cand. legal Sci. Omsk, 2004. P. 22.

O.B. has a different opinion. Vinogradova, B.B. Samdanov, who believe that the decision to terminate a criminal case in connection with the reconciliation of the parties can be made only if the person has reconciled with the victim and made amends for the harm caused, which is possible when the person who committed the crime pleads guilty, realizes what he did and compensates damage caused to the victim<12>.

<12>Vinogradova O.B. On the issue of specifying the procedural status of participants in criminal proceedings upon termination of a criminal case in connection with the reconciliation of the parties // Russian investigator. 2003. N 1. P. 16; Samdanova B.B. Problems of the formation and development of the institution of termination of a criminal case in connection with the reconciliation of the victim with the accused in modern Russian criminal proceedings. Author's abstract. dis. ...cand. legal Sci. M., 2003. P. 20.

Sharing the point of view of the latter, we believe that the suspect accused upon termination under Art. 25 of the Code of Criminal Procedure of the Russian Federation in a criminal case of private-public or public prosecution must admit guilt in committing a crime, since the adoption of such a decision depends on the will of the relevant officials. When a criminal case of private prosecution is terminated due to reconciliation between the victim and the accused in the manner prescribed by Part 2 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, such a condition for terminating a criminal case is not necessary, since such a decision depends on the will of the victim and is subject to mandatory termination.

The criterion for terminating a criminal case in connection with the release of a person from criminal liability should be the loss of public danger by the person who committed the crime. We believe that when a person admits his guilt in committing a crime, he loses the social danger, since the admission of guilt expresses the internal, mental attitude of a person to the crime committed and consists in this case in the awareness of its illegality, the manifestation of regret about the criminal act committed by him and the harm caused, his intentions actions to compensate for the damage or otherwise make amends for the harm and no longer commit crimes.

So, in our opinion, the content of Art. 25 of the Code of Criminal Procedure of the Russian Federation should be presented in the following wording:

“The court, as well as an investigator with the consent of the head of the investigative body or an inquiry officer with the consent of the prosecutor, have the right, on the basis of a statement from the victim or his legal representative, to terminate a criminal case against a person suspected or accused of committing a crime of minor or medium gravity, in cases provided for in Article 76 of the Criminal Code Code of the Russian Federation, if this person admitted guilt in the crime committed, reconciled with the victim and made amends for the harm caused to him.”

Thus, despite the fact that the Code of Criminal Procedure of the Russian Federation does not indicate the recognition of guilt by a suspect accused of committing a crime as a condition for making procedural decisions, we believe that in some cases the legislator implies such a condition. An analysis of the legal literature on the issue under consideration suggests that in many cases the authors consider such a condition mandatory<13>. The presence of a different opinion on this issue indicates that there is an urgent need to regulate this issue at the legislative level by introducing appropriate amendments to the Code of Criminal Procedure of the Russian Federation.

<13>Alexandrov A.S. Grounds and conditions for a special procedure for making a court decision if the accused agrees with the charge // State and Law. 2003. N 12; Vinogradova O.B. On the issue of specifying the procedural status of participants in criminal proceedings upon termination of a criminal case in connection with the reconciliation of the parties // Russian investigator. 2003. N 1; Endoltseva A.V. Institute of exemption from criminal liability: legislative and law enforcement problems. dis. ... doc. legal Sci. M., 2005; and etc.

Voluntary confession of guilt
and the problem of self-incrimination of the accused

Voluntary admission by the person who committed the crime of his guilt and giving relevant reliable testimony about this is not such a rare occurrence in practice. The accused may confess to committing a crime immediately during the first interrogation or even before the initiation of a criminal case by contacting law enforcement agencies with a statement of surrender. The understanding that a crime will have to be punished and subject to certain restrictions may deter a person from admitting guilt in the hope of avoiding the negative consequences of criminal prosecution if guilt is not proven. During the investigation of a criminal case, the accused, under the influence of certain factors, including the collected evidence, the influence of stimulating norms of the criminal law on reducing criminal liability in cases of active repentance or other actions on the part of the accused aimed at helping the investigation in the investigation of the crime, may also admit your guilt. The accused can plead guilty for the first time only at the trial stage after the completion of the preliminary investigation. The social value of voluntary confession lies in the fact that a person, having committed criminally punishable, socially dangerous acts, voluntarily and sincerely reports this to law enforcement agencies and (or) the court in order to, having suffered a well-deserved punishment for what he did, compensate for the harm that he caused to society. relationships and specific victims who suffered from his illegal actions.
The voluntary admission of guilt by the accused can be expressed in a statement of surrender, which, in accordance with Art. 142 of the Code of Criminal Procedure of the Russian Federation recognizes the voluntary communication of a person about a crime he has committed. A person’s statement to surrender can be made either orally or in writing upon personal arrival of the person who committed the crime to law enforcement agencies. A statement of confession, as the primary source of the most important information about a crime, reported by the person who committed the crime, is subject to subsequent verification, and the circumstances set out in it are subject to proof according to the rules of criminal proceedings.
By virtue of Art. 140 of the Code of Criminal Procedure of the Russian Federation, confession is a reason for initiating a criminal case and is documented in a protocol of confession. This protocol sets out the circumstances of the crime committed, indicating the time and place of its commission. After drawing up a protocol on confession, if there are sufficient grounds to initiate a criminal case, such a case should be initiated, and the person who confessed should be interrogated as a suspect in compliance with criminal procedural guarantees.
Judicial practice recognizes a personally written or recorded statement of confession as independent documentary evidence in the sense of Art. 84 of the Code of Criminal Procedure of the Russian Federation in cases where there are no circumstances preventing its recognition as admissible evidence (Article 75 of the Code of Criminal Procedure of the Russian Federation)<1>. An important criterion for the admissibility of a confession statement as evidence in a criminal trial is the establishment of the voluntariness of the statement made by the person. The voluntariness of the statement presupposes that a person who contacts law enforcement agencies with a truthful report about the crime he has committed acts of his own free will without external coercion<2>. It seems that an additional guarantee of ensuring the voluntariness of information reported by a person who has appeared to law enforcement agencies can be the enshrinement in the law of a requirement for mandatory explanation to him when accepting a statement about a crime he has committed, the provisions of Art. 51 of the Constitution of the Russian Federation on the right not to testify against oneself.
Confession as a result of a conscious and free expression of will in conditions where a person had the freedom to choose a certain type of behavior and this choice depended only on him, positively characterizes the post-criminal behavior of a person aimed at speedily solving the crime committed, and possibly preventing the consequences of its commission , reflecting the person’s readiness to bear criminal responsibility for the crime. For these reasons, confession is taken into account by the legislator as a circumstance mitigating punishment (clause “and” of Article 61 of the Criminal Code of the Russian Federation).

The Presidium of the Supreme Court of the Russian Federation changed the sentence against N. on charges of murder and theft, applying Art. 62 of the Criminal Code of the Russian Federation on mitigation of the sentence of convicted N.
The court of first instance indicated in its verdict that N. did not actively contribute to the discovery of the crime, but, on the contrary, tried to hide it; she wrote a statement of surrender after she was detained by police officers and had a conversation with her, i.e. the statement was forced and did not indicate the convict’s repentance for her crime.
The Presidium of the RF Supreme Court did not agree with these conclusions of the court, motivating its decision as follows. In accordance with Art. 62 of the Criminal Code of the Russian Federation in the presence of mitigating circumstances provided for in paragraphs. "i" and "k" part 1 art. 61 of the Criminal Code of the Russian Federation, and in the absence of aggravating circumstances, the term or amount of punishment cannot exceed three quarters of the maximum term or amount of the most severe type of punishment provided for by the relevant article of the Special Part of the Criminal Code of the Russian Federation. At the same time, the criminal law does not consider active assistance in solving a crime as a prerequisite for recognizing a confession as mitigating evidence.
As can be seen from the case materials, two days after the crime was committed, N. received a duly executed statement of confession. She reported the murder of the victims, indicated the method of murder, and the motives for committing the crime. According to the protocol, the confession was formalized at 18:00, and N. was detained, as can be seen from the arrest report, later, at 20:00 on the same day. Thus, it was precisely the confession that served as the basis for suspecting N. of involvement in the commission of a crime against the victims. There is no evidence in the case materials indicating her involuntary confession. There are no circumstances aggravating N.’s punishment<1>.
In addition, surrender, among other conditions specified in the law (the person committed a crime of minor or medium gravity for the first time, contributed to the detection of the crime, compensated for the damage caused or otherwise made amends for the harm caused as a result of the crime) forms the basis for exemption from criminal liability in connection with active repentance (Article 75 of the Criminal Code of the Russian Federation). In relation to certain crimes (Articles 204, 291, 307 of the Criminal Code of the Russian Federation), surrender is the only condition for releasing a person from criminal liability<1>.

In itself, the voluntary admission of guilt by the accused (in practice, the term “frank confession”, unknown to the law, is sometimes used) is not among the circumstances mitigating punishment (Article 61 of the Criminal Code of the Russian Federation). Voluntary admission of guilt may be taken into account by the court when assigning punishment as circumstances characterizing the personality of the perpetrator, under Part 3 of Art. 60 of the Criminal Code of the Russian Federation. In the case where the voluntary admission of guilt by the accused is accompanied by the commission of actions depending on his will and desire, which positively characterize his post-criminal behavior and are classified by the legislator as circumstances mitigating punishment (paragraphs “i”, “k”, Part 1 of Article 61 of the Criminal Code of the Russian Federation - confession; active assistance in solving the crime, exposing other accomplices in the crime and searching for property obtained as a result of the crime; providing medical and other assistance to the victim immediately after the commission of the crime; voluntary compensation for property damage and moral harm caused as a result of the crime, other actions aimed to make amends for the harm caused to the victim), in the absence of aggravating circumstances, the punishment imposed by the court in accordance with Art. 62 of the Criminal Code of the Russian Federation cannot exceed three quarters of the maximum term or amount of the most severe type of punishment provided for by the corresponding article of the Special Part of the Criminal Code of the Russian Federation.

The voluntary admission of guilt by the accused does not guarantee its credibility, and therefore does not always indicate the actual guilt of the accused in committing a crime. Since the voluntary confession of the accused is based on his personal impressions, subjective attitude to what is happening, as well as other internal factors that determine his will to confess, the information provided by the accused about his guilt in committing a crime may not correspond to the objective circumstances of the incident. In accordance with the proposed classification of types of confession of the accused, unreliable confession, depending on the psychological attitude of the accused to the information he voluntarily communicates about his guilt (whether he considers his own confession to be true or not), we divide into confession due to error (true confession) and self-incrimination (false confession) ).
Confession due to error is characterized by the absence of the accused’s intention to distort information about the actual circumstances of the case in order to achieve a result determined for himself, his sincere attitude towards the information he communicates as truthful and reliable. Testimony given voluntarily by the accused may not correspond to reality as a result of an error, which is a consequence of unfavorable conditions of perception, deficiencies of the sensory organs, emotional state, etc., as well as as a result of a legal error, i.e. misconceptions in the legal assessment of their actions or regarding the factual circumstances of the case. A typical example of an error regarding the factual circumstances of a case cited in the legal literature concerns cases where the accused confesses to committing the murder of a person who was already dead at the time of the attack.
Citizen M. reported to the police that while chasing a mad dog through his garden and wanting to kill it, he accidentally dealt a fatal blow with a shovel to a neighbor’s boy who was sleeping in the garden. The dog jumped over the boy, whom he had not noticed, and the blow of the shovel hit the child's face. Meanwhile, a forensic medical examination determined that the child’s death was caused by poisoning with a potent poison, and the wound on his face inflicted with a shovel was post-mortem. The investigation carried out in the case established that M. was indeed chasing a mad dog and accidentally hit the child in the face with a shovel, but the child was already dead at that moment - he was poisoned by his stepmother.
In relation to a legal error in assessing his actions as criminal, for which the accused voluntarily admits his guilt, an example can be given when the accused admits to purchasing a narcotic drug under Part 1 of Art. 228 of the Criminal Code of the Russian Federation, however, from the evidence available in the case it follows that the amount of the seized narcotic drug is not large, and therefore, the elements of the incriminated crime are absent, despite the accused’s admission of guilt.

Voluntary false confession of guilt is characterized by the fact that the accused understands and realizes that the information he is reporting is not true, but for some reason, consistent with his personal interests, he wants to mislead law enforcement agencies about his involvement and guilt in committing a crime. In the theory of criminal proceedings, deliberately false testimony of the accused (suspect), in which he admits himself guilty of committing a crime, although in fact he did not commit it, is called self-incrimination<1>. The concept of self-incrimination was also defined in the Resolution of the Plenum of the Supreme Court of the USSR of December 23, 1988 “On some issues of application in judicial practice of the Decree of the Presidium of the Supreme Soviet of the USSR of May 18, 1981 “On compensation for damage caused to a citizen by illegal actions of state and public organizations, as well as officials in the performance of their official duties" as knowingly false testimony of a suspect, accused, defendant, given in order to convince the preliminary investigation authorities and the court that it was he who committed a crime that he actually did not commit<2>.
The basis for a person’s choice of one or another behavior option is motive as a person’s conscious internal motivation, determined by his needs and interests. The motive for the actions of the accused when he gives knowingly false self-incriminating testimony can be various “objective and subjective factors that encourage the accused and the defendant to behave in a premeditated way in the name of certain interests and achieving goals.”<1>. At the same time, the specific behavior of the accused, formed under the influence of certain subjective motives, aspirations determined by the circumstances of a particular criminal case, is consistent with his individual consciousness and corresponds to his good will. In contrast to the self-incrimination of the accused, which is caused by the influence of external factors on him, including on the part of the persons conducting the investigation of the case, the motives for voluntary self-incrimination, as a rule, are personal in nature and relate to the interests of the accused himself.

The procedural literature lists specific motives that guide the accused when giving deliberately false self-incriminating evidence.<1>. Summarizing them, we present below the most common motives for false confession in practice: 1) the desire to protect relatives and close friends from criminal liability, i.e. persons whose interests for the accused are higher than their own; 2) the desire to be convicted of a crime of minor or moderate gravity in order to avoid responsibility for actually committed more serious crimes; 3) the desire to shield accomplices by accepting their guilt, bearing in mind that the penalty for committing a crime alone is less than for committing a crime by a group of persons, or for the purpose of receiving material or other rewards from accomplices; 4) the desire to show oneself as an experienced, “seasoned” criminal, which is most often characteristic of juvenile offenders; 5) the need to find “shelter” in places of deprivation of liberty (typical for persons engaged in vagrancy and begging); 6) painful motives of mentally ill people; 7) fear of severe punishment that may be applied if sincere repentance does not follow. Based on the results of a survey of lawyers conducted during the preparation of this work, the following were cited as reasons for voluntary self-incrimination that defense lawyers had to encounter in their work: to save relatives or loved ones from criminal prosecution, the desire to avoid responsibility for a more serious crime, to shield an accomplice, false an understandable sense of camaraderie, a deal with the investigation, a lack of faith in justice, the desire to quickly get into the “zone” and receive material gain.

As a type of deliberately false testimony, self-incrimination in all cases makes it difficult (or even prevents) the establishment of the truth in the case, and if the guilty person actually manages to avoid criminal liability for his act by placing it on the innocent, but voluntarily admitting the guilt of someone else, the accused, the general principle does not work, no private prevention.

From the point of view of the purpose of criminal proceedings, designed to serve as a means of protecting an individual from illegal and unfounded accusations, convictions, and restrictions on his rights and freedoms, two aspects of the problem of voluntary self-incrimination deserve characterization: on the part of the prosecution and on the part of the defense.
It is quite obvious that due to the provisions of the principle of presumption of innocence about the need to prove the charge of committing a crime in the manner prescribed by law, which corresponds to the requirement that the confession of the accused must be confirmed by the totality of evidence collected in the case, the voluntary admission of guilt by the accused is subject to verification through the collection of other evidence. The admission of guilt by the accused does not terminate the procedural activities of state bodies carrying out the function of criminal prosecution, nor does it relieve them of the need to collect evidence confirming the guilt of the accused in order to prepare and substantiate the charge (criminal claim<1>), presenting it to the court for resolution on the merits by a court verdict. With the exception of cases where criminal prosecution is terminated at the pre-trial stages of the proceedings, the charge brought is subject to verification by the court in the conditions of the principles established for the trial procedure (adversarial, oral, immediacy, publicity, etc.). In accordance with the adversarial principle, imposing on the public prosecutor the obligation to confirm the accusation with evidence obtained in the manner prescribed by law requires the relevant state bodies carrying out pre-trial preparation of the charges to actively collect evidence, including refuting the unreliable confession of the accused. Otherwise, the refusal of the accused in court to retract his own confession and the inability of the prosecutor to confirm with the collected evidence the validity of his substantive and procedural claims will lead to an acquittal against the accused. Thus, at the stage of the preliminary investigation, conducted before the trial and in order to collect evidence that is subject to verification by the court during the trial, the law does not provide for any special procedural consequences associated with the admission of guilt by the accused; on the contrary, it prescribes, not limited to the confession of the accused , collect evidence confirming the validity of the charges brought in order to prevent unlawful criminal prosecution against an innocent person.
From the standpoint of respecting the interests of a private person against whom criminal prosecution is being carried out, it is necessary to recognize the following. The accused is guaranteed the right to defense. The main purpose of the constitutional principle of providing the accused with the right to defense is to create conditions in which the freedom of the accused to carry out defense at his own discretion would be guaranteed against illegal and unfounded restrictions on the part of persons investigating the case. The previous paragraph discusses in detail the guarantees of the free will of the accused in the process of evidence, aimed at ensuring the voluntariness of his confession. Within the framework of the guarantees provided to the accused for the exercise of the right to defense, the accused has the right, if it suits his interests, to plead guilty by giving appropriate evidence. The right of the accused to give any evidence in the case, including evidence that does not correspond to reality, also extends to the opportunity for the accused to provide information that is obviously untrue about his guilt in committing a crime.

In accordance with the above, we come to the conclusion that in cases where the accused consciously and voluntarily gives self-incriminating testimony that does not correspond to reality, guided by his internal motives that determine precisely this position in the case, he voluntarily accepts the risks associated with possible criminal liability. At the same time, acting within the framework of the law (the law does not prohibit the provision of knowingly false self-incriminating evidence), the accused proceeds from his personal interests, and in this sense, harm to his person is caused as if with his own consent.
In the theory of criminal law, a person’s consent to cause harm to his rights is understood as permission to certain criminally significant actions on the part of third parties in relation to his rights, voluntarily expressed by a competent person in the prescribed form before the commission of such actions and entailing criminal legal consequences<1>. According to the Criminal Code of the Russian Federation, it is not a crime to cause physical harm to oneself (with the exception of cases of self-harm for the purpose of evading military or alternative civil service (Article 328 of the Criminal Code of the Russian Federation) or for the purpose of evading the duties of military service (Article 339 of the Criminal Code of the Russian Federation)) . The consent of a person to deprive himself of physical freedom excludes the criminality of the act, provided that the voluntarily imprisoned person, with the help of third parties, does not create a threat of physical harm or death<2>.
In criminal proceedings, the principle of the presumption of innocence applies, according to which measures of state coercion (punishment) are not subject to application to a person considered innocent until his guilt is proven in the manner prescribed by law and confirmed by a court verdict that has entered into legal force. Not allowing to torture the accused in order to expose him to a lie and establish the factual circumstances of the committed act in accordance with objectively occurring events, in cases where the court, in compliance with the established procedure, found the person guilty of committing a crime, i.e. the presumption of innocence was refuted by the prosecutor according to the rules of the Code of Criminal Procedure of the Russian Federation and, at the same time, the unreliability of the confession of guilt, expressed in voluntary self-incrimination, was not established, the sentence passed in the case will comply with the requirements of Art. 297 Code of Criminal Procedure of the Russian Federation. In this case, the right of the accused to self-incrimination, with proper provision of freedom of expression, acts as a kind of consent to the onset of negative criminal legal consequences for him of a conviction. In those cases where the unreliability of the confession is either positively established, or the evidence collected in the case is insufficient to refute the presumption of innocence, the accused, who voluntarily declared his guilt in committing a crime, should not be subject to criminal liability.

Another aspect of the procedural consequences of the accused’s voluntary self-incrimination concerns the procedural figure of the defense attorney, or rather, the limits of his procedural independence from the defendant. In works devoted to the powers of the defense attorney, as well as the ethical aspects of advocacy, questions about the permissible limits of discrepancy between the position of the defense attorney and his client in relation to situations where the accused denies his guilt have been widely discussed. Recently recognized is the point of view that the defense lawyer does not have the right to admit guilt has been established if the client denies it even despite the obviousness and proof of the accusation<1>. This provision is enshrined in legislation. In accordance with clause 3, part 4, art. 6 of the Federal Law “On Advocacy and the Legal Profession in the Russian Federation,” a lawyer does not have the right to take a position in a case against the will of the client, except in cases where the lawyer is convinced of the client’s self-incrimination.
At the same time, neither at the level of law nor in theory is there a delimitation of the activities of the defense attorney in the event of an unreliable self-incrimination of the accused, depending on the presence of his will to take exactly such a position in the case. What should a lawyer do in a case where the accused voluntarily, without external coercion, gives knowingly false testimony about his guilt in committing a crime that he did not commit? In general terms, in relation to the powers of a defense attorney in criminal proceedings, the lawyer’s right to use all legal means and methods of defense is provided in order to prevent the prosecution of an innocent person. The literature unanimously notes that the defendant’s confession of his guilt does not relieve the defender of the task of proving innocence if the confession is not confirmed by other evidence, and especially if it contradicts this evidence.<1>. Sharing this position in relation to cases of forced confession by the accused, as well as voluntary confession due to error, it seems that with regard to the actions of the defense attorney in cases of voluntary self-incrimination of the accused, this statement requires some clarification.

The duty of a lawyer in accordance with Art. 7 of the Federal Law “On Advocacy and the Bar in the Russian Federation” is a requirement to honestly, reasonably and conscientiously defend the rights and legitimate interests of the principal by all means not prohibited by law. Honesty, reasonableness and conscientiousness are more moral and ethical categories than legal ones. Recognizing the underlying criterion of trust between the lawyer (defender) and the principal (client), which determines the basis for the existence of the institution of advocacy, it seems that in situations where the voluntary self-incrimination of the accused becomes obvious to the defender, and the motives for such conduct, the question of the procedural independence of a lawyer must be resolved in each specific case based on the actual circumstances. It is unacceptable, in our opinion, to demand from the defense attorney integrity and objectivity in refuting the voluntary self-incrimination of the accused under the threat of a possible conflict with the client, who revealed to the defense attorney the true reasons for the self-incrimination. The behavior of the defender in such a situation must be determined taking into account the ethical aspects of the consequences that the defense “at all costs” may lead to.

As part of a survey of lawyers, the following results were obtained in response to the question of what a lawyer would do if he was convinced that his client was voluntarily incriminating himself:
1) will carry out defense in accordance with the position of the defendant - 3%;
2) will prove the innocence of the client - 26%;
3) the decision will depend on the specific circumstances of the criminal case - 71%.
During conversations with lawyers in the process of preparing this work, one of the lawyers with a fairly long work experience (more than 20 years) regretfully recalled a case that took place at the beginning of his practical activity, when he proved in court the innocence of a defendant who had incriminated himself in the interests of his brother, a disabled child, his client was acquitted, and the real culprit, who was present in the courtroom, was detained and subsequently convicted. According to him, the pain and suffering that his “victory” brought to the elderly parents of his acquitted son, who knew and hid the truth out of fear for the health of their second son if he was brought to criminal responsibility, are incommensurate with the consequences of convicting an innocent person who voluntarily took the guilt of his brother . At the same time, the lawyer, who fulfilled his professional duty, as it seemed to him, in accordance with the law and conscience, has for many years regretted the position he chose to prove his client’s innocence.
To summarize the above, it should be said that the voluntary confession of the accused, which is evidence in the case, always has a positive result both for the accused himself and for the investigation. At the same time, voluntary confession is subject to verification and evaluation in conjunction with other evidence in the case. The possibility of sentencing based solely on the testimony of the accused about his guilt in committing a crime is not allowed. The procedure for investigating and resolving criminal cases established by the criminal procedural law requires establishing not only the voluntariness, but also the reliability of the confession of the accused. Without limiting the right of the accused to voluntary self-incrimination, the law nevertheless requires that the person’s guilt in committing a crime be proven according to the rules provided for by the Code of Criminal Procedure of the Russian Federation, which ensures the reliability of the conclusions, i.e. achieving the truth corresponding to the materials of the criminal case.

§ 4. Confession of guilt under duress
and its procedural consequences

No matter how good the rules of activity are,
they may lose their power and meaning in the inexperienced,
rough or unscrupulous hands.

This paragraph is devoted to the study of the confession of the accused obtained under coercion by officials with authority in the investigation of a criminal case. As already mentioned, forced confession is characterized by suppression of the will of the accused, acting contrary to his personal interests, restriction of freedom of choice, to give or not to testify, as well as what specific testimony to give in the case. The freedom of the accused, who participates in criminal proceedings in defense of his interests and is a party more vulnerable than the prosecution, is guaranteed by law. Only then can the confession of the accused be evidence in the case, i.e. serve as one of the means of establishing circumstances subject to proof when it is given freely and voluntarily. As a result of coercion applied to the accused, the provisions of the presumption of innocence and the right of the accused not to incriminate himself are violated. When the will of the accused is suppressed, there is a possibility that the information he provides may not correspond to reality, and the factual circumstances may be distorted in a predetermined direction. Back in the 18th century. C. Beccaria wrote that “the sensation of pain can reach such a degree that, having taken possession of the entire person, it will leave the person subjected to torture only with the freedom to choose the shortest path at a given moment that would save him from torment.”<1>.
Coercion is understood as any mental or physical influence on the accused, which, by limiting his freedom of choice, predetermines specific actions and (or) decisions. In the legal literature it was noted that coercion should mean coercion not only to give evidence when the accused does not want to give it at all, but also to give certain evidence that the investigator wants to obtain, but the accused does not want to give, without refusing to give evidence at all<1>. Coercion in order to obtain the evidence “needed” by the investigator or interrogator (and not objective) can be both physical and mental<2>, and at the same time it will be illegal regardless of whether the real criminal admits his guilt or whether the innocent person incriminates himself. In addition, any action of the person conducting the interrogation aimed at violating the requirement that the accused give voluntary testimony entails the loss of the evidentiary value of this type of evidence.

The current legislation establishes an absolute ban on the use of any uncivilized influence on participants in criminal proceedings. Provisions on the inadmissibility during criminal proceedings of any treatment that degrades honor and dignity or creates a danger to life and health are included in the principles of criminal proceedings (Part 1 of Article 9 of the Code of Criminal Procedure of the Russian Federation). At the same time, it should be noted that criminology is replete with all sorts of “investigative tricks” and “psychological traps”<1>, the purpose of which is to expose the accused who is hiding the truth known to the investigator (more precisely, what, in the opinion of the investigator, is the truth). We should agree with the statement of S.A. Pashin that “in legal investigative practice, the issue of acceptable and unacceptable tactics, forgivable “tricks” during interrogation is increasingly being discussed, and in forensic literature, the question of acceptable and unacceptable “tricks” during interrogation is increasingly being discussed. Scientific recommendations on the psychological impact on the accused and witness are becoming more and more sophisticated; they are aimed at obtaining a desired result by means that will not be classified as violence, threats, or other cruel or degrading treatment."<2>. According to the theory of “conflict investigation,” when the accused refuses to testify or gives false testimony, a conflict situation arises between the accused and the investigator, to overcome which the investigator’s actions should be aimed<3>. A fair criticism of this theory is based mainly on the assertion that the shift of the center of gravity of the investigation to single combat, the struggle between the investigator and the accused, provokes a revaluation of the confession of the accused: the investigator will seek from the accused the replacement of non-admission of guilt with its admission, i.e. transforming a conflict situation into a conflict-free one<4>.

Recommendations such as paralyzing, lulling the vigilance of the interrogated person, bringing him to a state of confusion, stunning him with an unexpected question, and similar “psychological traps” in reality “are on the verge of provocation, if not turning into such at all.”<1>with one single goal - to persuade the accused to confess and thereby eliminate conflict in the investigation. Applying all kinds of psychological manipulations, persuasion, promises, and suggestions to the accused can lead to a forced confession, which, in turn, will not necessarily correspond to reality. A confused, confused person, who is also in custody, can incriminate himself by giving the testimony “necessary” to the investigation. The techniques used during interrogation of the accused must not only be impeccable from the point of view of law, but also morality (inadmissibility of deception, deliberately false statements aimed at forming in the accused the belief that the investigator knows all the circumstances of the case, etc.).

Illegal actions of persons conducting an investigation into a case to force an accused or suspect to give evidence entail criminal liability (Article 302 of the Criminal Code of the Russian Federation)<1>. In addition to the investigator and interrogating officer, the number of subjects subject to liability under Art. 302 of the Criminal Code of the Russian Federation, the legislator also included other persons who force the accused to testify with the knowledge or tacit consent of the investigator and interrogator<2>. Such a decision seems justified and necessary, since in a number of cases, inducing the accused to give a confession is carried out by operational officers attracted by the investigator, interrogating officer to participate in the investigation of the case and carry out individual assignments.

In Part 2 of Art. 95 of the Code of Criminal Procedure of the Russian Federation establishes a norm according to which, if it is necessary to carry out operational-search activities, with the written permission of the investigator or inquiry officer in charge of the case, meetings of an employee of the investigative body carrying out operational-search activities with the suspect (including those detained and in custody) are allowed. in a temporary detention facility). The procedural law does not regulate the procedure for holding such meetings and does not provide for the rights and obligations of their participants. It is not clear whether a suspect can refuse to communicate with an operative officer, whether the presence of a defense attorney should be ensured if he is involved in a criminal case, whether procedural guarantees apply to the suspect during such meetings, and how these guarantees are ensured. The consequence of legal uncertainty in these matters is that actions beyond the scope of the preliminary investigation procedure may lead to a violation of the rights and interests of the suspect. For this reason

Should I admit guilt?

Should I admit guilt? This is the main question of a person accused of committing a crime. Each case is someone’s fate, and fate, like a criminal case, is different for everyone, there are no similar destinies and there are no similar criminal cases, but there are general criteria when you still need to admit guilt, and when you can’t plead guilty to a crime. under what circumstances.

Remember! An admission of guilt is the main evidence in a criminal case. Confession of guilt is the queen of evidence! If you confessed, and then changed your mind and decided to change your testimony and refuse your confession, then even if you subsequently refuse your testimony, it will be used as evidence in a criminal case.

How does this usually happen?

The operatives take explanations from the person, pressure or persuade the person to confess everything, saying that it will be better this way, the operatives use many different tricks to get the person to admit to what he did or did not do, it doesn’t matter who is to blame. Unfortunately, in our system of law enforcement agencies, the main task is not to understand the case, but by all possible means, including deception, to obtain a confession of guilt from a person, to obtain the coveted signature that the person admits his guilt. Then the investigator arrives or the person is brought to the investigator and interrogation begins as a suspect. Investigators, as a rule, are more civilized employees, not rude, unlike operational employees, they try to find contact with a person, do everything possible to gain your trust.

If the investigator is too polite with you during the first interrogation? This is a sign that there is no evidence against you!

Yes, yes, this is the first sign that there is no evidence against a person, so the main goal of the investigator is to persuade you, to assure you that there is no other way out, he will pour you some tea, offer to smoke together, everything is very polite, the main goal is to gain your trust, to establish contact and the investigator is thinking about only one thing at this moment, what would you write in the interrogation report as a suspect in the line: I fully admit my guilt and testify. As soon as you sign your confession and write that I fully admit my guilt, I repent of what I did, my words were written down correctly, I read them, the investigator, to consolidate the result, immediately prints out the charge sheet and duplicates all your confessions again, you put the coveted signature on the confession your guilt and you are all in a trap and that’s it, after two protocols you will not escape.

If you confessed in the protocol as a suspect, and then later in the protocol as an accused, then there is simply no point in not admitting your guilt; by your non-confession you are simply increasing your sentence and the severity of your punishment. It's like the old saying, once a rabbit's head is caught in a rope, any further attempts to escape will only result in strangulation. It's about the same here.

The only way out in this situation is to admit these protocols with your admission of guilt as inadmissible evidence in a criminal case. But there is one big BUT: it is very difficult to get the court to recognize these protocols as unacceptable and obtained in violation of the Code of Criminal Procedure. Many will ask, how did I give this testimony under pressure, was I deceived, and so on, but this is all poetry and snot, but facts are needed. Proving that you were deceived and that they promised you something and took advantage of your legal illiteracy is nonsense. During interrogation, the investigator always invites a state lawyer; without a lawyer, interrogation of a person is considered illegal, but state lawyers very often do not come to the interrogation, but sign at the end of the interrogation. You can say that the person was interrogated without a lawyer, but how can you prove it? That is the question. You can check the hours when the person was interrogated (the hours of interrogation are always indicated at the beginning of the protocol) and the hours when the lawyer arrived. If the interrogation was carried out in a temporary detention facility, then there is a visitor register and each person who enters enters the time of entry and exit. But here too there is a big trap, the fact is that the investigator and lawyer fill out these requirements and set the time of arrival in strict accordance with the time of the protocol; in Russia we do not have electronic cards that clearly record the time of each lawyer and investigator, we fill out ordinary paper “bits” and you can write there at any time of arrival. Therefore, only cameras can give at least some clear answer to the question: was there a lawyer at the interrogation, if not, then these protocols with an admission of guilt should be declared invalid. And so it’s all useless. Only facts and evidence are needed by the court.

A common investigator trick

Very often, investigators say the following thing: “There is no point in not confessing, we have a video recording where everything is recorded.” And they present this video recording, a legally illiterate person confesses, because he sees that everything is really on the video and there is no point in denying everything. And this is the main mistake. Confession is different. And whether to admit to committing a crime that you are charged with is not worth it. For example, the video shows an attack on a person with a weapon, the person’s phone is taken away and they run away. The person who did all this was caught and shown this video and what does the person do? He admits to robbery (in one of the most terrible and serious articles) and completely deprives himself of his chances of reclassifying the article. This is the most terrible trap! The man admitted to robbery, depriving himself of the opportunity to switch to lighter charges.

Rule number one, never, under any circumstances, at the beginning of the investigation, admit your guilt under serious and especially serious charges, no matter what they present or tell you. No matter what witnesses there are. The task of the investigation is to prove your guilt and give you a heavier charge, and your task is to make the charge lighter. The most important thing is what article you are charged with, what part. Remember! By pleading guilty to a serious crime at the beginning of the investigation, you are signing a long-term sentence for yourself. You need to admit guilt or not admit guilt at the end of the investigation, if the investigation has enough evidence in your criminal case. They are just waiting for your recognition. Why help them, this is your fate and you cannot sign under serious articles under any circumstances. Therefore, you will decide whether to confess or not to confess only at the end of the investigation, when you are charged in the final version, only at the end can you really evaluate all the evidence against you and decide whether to admit guilt to the crime of which you are accused. Give yourself a chance, don’t help the investigation do their job, let them prove your guilt, and don’t help them accuse themselves.

Self-incrimination

Some very often say that I incriminated myself; in our country, such a thing as self-incrimination is only on paper; in practice, it is impossible to prove that you have incriminated yourself. You can incriminate yourself only under strong psychological and physical pressure from law enforcement agencies or third parties, if someone has threatened you or threatened your family members to take all the blame on themselves. It is difficult to prove this; you need witness testimony, SMS messages, instant messages with death threats received by you or your loved ones if you do not admit your guilt. Simply asserting unfoundedly that my family and I were threatened does not mean anything; we need real evidence. In our practice, there have been many times when people claimed that they were receiving threats, but only once we actually managed to prove the fact of self-incrimination, since the father of a young man received SMS messages that he would be killed if his son did not take it upon himself and tell, who actually committed the crime. Apparently the people who made the threats lost their fear and were not afraid of anything, so they sent SMS messages with threats. But this only happens in isolated cases, now that there are messengers where people make threats and immediately delete the message after it has been read, it becomes much more difficult to prove threats. And the court needs to see concrete evidence; the court cannot take as a basis the words of the accused and his family, since this is considered a method of defense, nothing more.

People are confident that if they are involved in a criminal case, they will certainly not incriminate themselves, no, dear, 90% of our citizens believe that having said that they will be given a suspended sentence against themselves, the investigator assures that everything will be fine just admit it, yes, yes, but there is no other way to stay free, you have to urgently admit it, and people themselves write their confession with their own hands about what they did or did not do.

Is it worth confessing in court?

To answer this question, you must realistically assess all the chances of being able to acquit you or your loved one or reclassify from a more serious article or part of an article to a less serious one. Understand that the court makes a decision not based on whether he believes you or not, the court may in its soul believe you and sympathize with you, but remember how the court will pass a verdict if there is too much evidence against you, where will the court put it, tear out pages from the criminal case affairs? Evaluate all the evidence in the case, evaluate what evidence you have that supports your position. How can you refute the evidence that the investigative authorities have collected against you? Evaluate everything objectively! Emotionless! Just the facts. The court evaluates only the facts. Turn off emotions, pain, injustice, frame-ups, evaluate the facts and your counter-arguments that you have. This is the only way you can answer the question for yourself whether you should admit to committing a crime or not. Whether to admit guilt or stand to the end.

A lot also depends on a particular judge; judges are divided into two categories: those who delve into the case and those who want to quickly consider it; the judge considers the criminal case superficially and formally. The human factor also operates here. Which category of people who are given the opportunity to decide your fate you will get does not depend on you.

Falsification of evidence against you

Unfortunately, it is difficult to work against this. Our people who work in law enforcement agencies are masters of frame-ups and falsifications, they have succeeded very well in this, to really look for evidence of the guilt of a person and the person who committed the crime is difficult and difficult for them, but to fabricate this, please, violates all possible human rights please too. Here you need to work, look at what was fabricated, which witnesses are clearly “fake”, it is difficult to prove fabricated evidence, but it is not impossible, so if you are accused of a serious crime, you have to fight at the entire stage of the investigation. And then look and evaluate what we managed to refute.

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It is important to know!

In chapter 40 and in the text of Art. 314 of the Code of Criminal Procedure of the Russian Federation refers to the consent of the accused with the charge brought against him, and not to an admission of guilt. The expression “admission of guilt by the accused (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). Most defendants, agreeing with the charge, consider this agreement as an admission of guilt, without delving into the intricacies of legal terminology. Great D.P. Special procedure for trial: theory and practice. // Russian Justice 2005. No. 4 In the practice of the Novosibirsk courts, not a single case has been recorded in which the accused agreed with the charge, but did not plead guilty.

But what to do if the accused, who answers the court’s question: Yes, I agree with the accusation, but I do not admit my guilt.”

Legal scholars are divided on this matter.

So, Aleksandrov A.S., Dubovik N.V. believe that admission of guilt is an important condition for the possibility of proceedings in a special manner. If guilt is not admitted or is partially admitted, the judge is obliged to terminate the proceedings under Chapter 40 of the Code of Criminal Procedure of the Russian Federation and schedule a trial in the general manner. Alexandrov A.S. Grounds and conditions for a special procedure for making a judicial decision if the accused agrees with the charge. // State and law. 2003. No. 12. Dubovik N.V. “Plea bargaining” and “special procedure”: comparative analysis. // Russian justice. 2004. No. 4

Petrukhin I.L. adheres to the same point of view, since he does not even focus on the differences in the formulations under consideration and uses them as equivalent. Pervukhin I.L. The role of the confession of the accused in criminal proceedings. // Russian justice. 2003. No. 2

Voskobitova L.A. draws attention to the possibility of agreeing with the charge without necessarily admitting guilt. The accused states only that he does not contest the charge, but nothing more. Voskobitova L.A. Criminal procedural law of the Russian Federation. M., 2004. P. 540

And yet, admitting guilt and agreeing with the prosecution are different actions of the accused, having different meanings. Admitting one's 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.

Also Associate Professor Velikiy D.P. highlights the legal aspect of the topic raised. A guilty plea may be used as the basis for charges. A confession of guilt made at the stage of preliminary investigation, recorded in the prescribed manner and confirmed by other evidence, has purely evidentiary value. In this case, 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 testimony 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: after reading the investigation materials, the accused decided that it would be more profitable to use a special procedure and in this case he must agree with the accusation.

Agreeing with the accusation is a manifestation of discretion, 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 against you without giving reasons. Great D.P. Special procedure for trial: theory and practice. // Russian justice 2005. No. 4

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

Admission of guilt has a substantive and legal significance, and agreement with the accusation has a procedural significance.

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

Redkin A.V. draws attention to the following. In the case when the accused is charged by the preliminary investigation authorities and he agrees with the accusation, this means that he admits that he has 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 a crime is formed precisely by guilt, the forms of guilt of the subject of the crime.

In the case when the accused admits that he has committed a certain crime, he automatically admits the presence of all elements of the crime in the act he committed, 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 crime committed.

The practice of applying the OPSR shows that “agreement with the accusation”, which is referred to in Chapter. 40 of the Code of Criminal Procedure of the Russian Federation, the law enforcement officer equates it to the defendant’s admission of guilt. Redkin A.V. Special procedure for trial. M. 2004. P.88

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

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. was a staunch supporter of this legal formula. Vyshinsky. Such views were generally characteristic of periods of strict authoritarian rule in Russia. If you turn to the Military Regulations of Peter I, then you can find a provision according to which the accused’s own admission of guilt is the most valuable, the best evidence.

Art. 5 of the Criminal Code of the Russian Federation enshrines 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 Basic Law considers the accused innocent. 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 officials conducting the process should be excluded. Art. 273 of the current Code of Criminal Procedure provides for a rule according to which the presiding officer, starting a judicial investigation, asks the defendant whether he pleads guilty.

It should be emphasized that even leading experts in the field of the theory of criminal procedure have not avoided the understanding of guilt as an element of the subject of interrogation of the accused. This, in particular, is evidenced by the title and content of the article by M.S. Strogovich “Admission of guilt by the accused as judicial evidence.” A similar approach has been preserved in 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 committing a crime, his attitude towards the act in the form of intent or negligence. This is perhaps the most difficult element of the crime and proving its content in practice encounters the greatest difficulties. Of course, the subject of the defendant’s testimony may also be his description of his mental state at the time of the crime, before it and after it was committed. These data play a significant role in deciding whether to prescribe a psychiatric or psychological-psychiatric examination. But in any case, only the court can evaluate them (as well as the investigator when interrogating the accused during the preliminary investigation). The legal question of a person’s guilt, being a key element of the crime 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, especially, types of guilt is not an easy task even for a qualified lawyer. Thus, by asking the defendant to admit his guilt, the court takes advantage of 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 above, asking such a question to the defendant, you can find out only one thing - his attitude towards the accusation. Thus, there is a doubling of the concept of guilt, which is difficult to agree with. Such a situation is unacceptable both theoretically and practically, since it can lead to investigative and judicial errors leading to objective imputation. The defendant’s answers to the question about “confession,” “partial admission,” or “non-admission” 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 establishing his guilt. If the accused (defendant) truthfully sets out the circumstances of the commission of the act and helps solve the crime, then in this case no special “confession” is required.

Guilt (its forms and types) is primarily a criminal legal category. She receives her assessment when the court classifies the crime committed under the relevant article of the Criminal Code. For this, and before this, the real psychological mechanism of committing a crime must be established: its motive, purpose, conscious choice of the object of the attack, knowledge of the special signs of the latter, the presence of a specific plan for committing a crime, selection of accomplices, or, conversely, the suddenness of the decision to commit a crime, and so on Further. Once established, the listed subjective circumstances are the evidentiary basis 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 interrogation of the defendant is the circumstances known to him related to the case, including those revealing the subjective side of the act. The defendant's testimony about the factual circumstances of the case is the realization of his right to defense, including the desire to mitigate the punishment, taking into account the giving of full and truthful testimony.

The desire to get the accused to admit his guilt before the court pronounces a 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 rely not on established factual data and the presumption of innocence, but on this confession.

In recent years, defendants who have admitted 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 the use of violence, threats and other illegal measures against them by officials of the investigative bodies. The veracity of each such statement is subject to careful verification. 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 to interrogate investigators and operational police officers, whose illegal actions the defendant referred to, as witnesses. At the same time, naturally, the interrogated “witnesses” were warned about criminal liability for evading testimony and for giving knowingly false testimony. It is obvious that such interrogations are nothing more than 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 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 and send the relevant materials to the prosecutor to verify the truth of the defendant’s statement about the use of illegal investigative methods against him. This seems to relieve 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 based on these facts.

The question of the reliability of the defendant’s statement with either method of verification remains open, the defendant’s arguments have not been reliably refuted. When rendering a guilty verdict, the court proceeds only from the assumption that the defendant’s statement 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, courts often refer in their verdict to his testimony given during the preliminary investigation, although doubts about the legality of their receipt, and therefore the admissibility of their use as evidence, remain unresolved. Thus, another important constitutional norm is violated - “irremovable doubts about a person’s guilt 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 a time when the presumption of innocence has not yet been refuted by a 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 a confession 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. Admission of guilt is also a type of psychological attitude of the defendant towards the accusation(and not to the committed act, as noted above), a psychological reaction to procedural actions. Therefore, it, like other similar reactions, cannot have any evidentiary value.

Moreover, one cannot 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 about this. This in no way fits with the fact that giving testimony is a right, not an obligation, for the defendant, and therefore, whether or not to change his testimony is his personal business. In case of contradictions, priority should be given to evidence given in court proceedings., in conditions of a public adversarial procedure, ensuring the highest level of procedural guarantees of respect for 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 the application of unauthorized measures against him during the preliminary investigation, the court must take appropriate measures to verify this 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 used as the basis for the charge only if the confession is confirmed by the totality of evidence available in the case.” So the law states that “a confession of guilt may be used as the basis for an accusation.” Let's try to argue - it should not, due to the presumption of innocence, and cannot, since the confession of the accused can only be obtained after giving him such a procedural status, that is, after the accusation is brought, and yet the basis of the accusation is nothing more than a sufficient the totality of factual data collected by the investigation by the time a person is brought in as an accused. The indictment must also not go beyond the limits of the charge established by the decision to bring the person as an accused. This means that the court is limited to the same framework.

Testimony of the accused cannot be obtained during urgent investigative actions, since interrogation of the accused is possible only after the presentation of charges formulated on the basis of the sufficiency of evidence, which is established by: protocols of inspection of the scene of the incident, area, premises, corpse, protocols of search, seizure, detention, examination , testimony of suspects, victims, witnesses. The norm is part 2 of Art. 173 of the Code of Criminal Procedure of the Russian Federation, which obliges the investigator to ask the accused about his admission of guilt, does not apply when interrogating a suspect.

Practice shows that it is the carrying out of urgent investigative actions that allows the investigator to obtain a set of sufficient factual data, which is the basis of the accusation during the preliminary investigation and set out in the decision to bring the person as an accused. This evidence allows the investigator to consider the event of a crime, the qualifications of the crime, the absence of circumstances eliminating criminal liability and the person to be brought as an accused as established. To understand all these circumstances, the admission or non-admission of guilt by the accused does not matter.

Only factual data contained in the testimony of the accused can have evidentiary value; admission of guilt in itself is not provided for in the list of types of evidence. However, in practice, in court sentences 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 a crime, the circumstances of its commission, its motives, etc., that is, incriminating testimony, this is, of course, the most important source of evidentiary information. When he answers the question of the court or investigator whether he is guilty of a crime, then the answer to this question does not contain such information, because it does not contain factual data, but the legal category of guilt. Resolving issues of law is the prerogative of the court. Having examined and assessed 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 the issue of guilt.

And one moment. Currently, the question of the duties of a defense attorney in a criminal case if his client admits his guilt in a crime that, judging by the case materials, he did not commit raises difficulties both in the scientific literature and in practical work.

Federal Law “On Advocacy and Advocacy in the Russian Federation” in paragraph 3, part 4, art. 6 prohibits a lawyer from taking a position in a case against the will of the client, except in cases where the lawyer is convinced of the client’s self-incrimination. However, the accused’s admission of guilt 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 defense attorney 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 so, another thing if the accused deliberately shields the true criminal. As already noted, it happens that the accused simply does not understand the meaning of the charge brought against him, to which he agrees. The lawyer, having seen in the case materials reasons to doubt the confession made by the accused, having discovered any exculpatory evidence, is obliged to point it out to the client and offer to refuse such a confession. If a lawyer is convinced that the defendant’s confession of guilt is erroneous, he not only has the right, but also the obligation to convince him to retract this testimony.

Ryazanovsky V.A. Unity of the 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. P. 55.

Aleksandrov A. On the meaning of the concept of objective truth // Russian justice. 1999. No. 1. P. 23.

Vyshinsky A.Ya. Theory of forensic evidence in Soviet law. M., 1941. P. 28.

Alexandrov A. Decree. op. P. 23.

Pashin S.A. Problems of the law of evidence // Judicial reform: legal professionalism and problems of legal education. Discussions. - M., 1995. - P. 312, 322.

Pankina I.Yu. Some aspects of the evolution of the theory of evidence in Russian criminal proceedings // Schools and directions of criminal procedural science. Reports and communications at the founding conference of the International Association for the Advancement of Justice. St. Petersburg, October 5-6, 2005 / Ed. A.V. Smirnova. St. Petersburg, 2005.

Smirnov A.V., Kalinovsky K.B. – Criminal procedure: Textbook for universities. – St. Petersburg: Peter, 2005. – p. 181.

See: Vinberg A.I. Forensics. Introduction to criminology. - M., 1950. Issue 1.- P.8; Belkin R.S. Collecting, researching and evaluating evidence. Essence and methods. M., 1966.- P. 44-53; Belkin R.S. Forensics: problems, trends, prospects. General and particular theories. - M.. 1987. - pp. 217-218.

See: Larin A.M. Work of an investigator with evidence. - M., 1966. - P. 43-66; Gorsky G.F., Kokorev L.D., Elkind P.S. Problems of evidence in Soviet criminal proceedings. - Voronezh, 1978. - P. 211.

See: Shafer S.A. Collection of evidence in Soviet criminal proceedings: methodological and legal problems. - Saratov, 1986. - P.41-42.

See: Shafer S.A. Decree. op.- P.55-73; Kipnis N.M. Decree. op.- pp. 65-66.

Rezepov V.P. Subjects of proof in Soviet criminal proceedings // Uch. Zap. LSU. – 1958. - P.112.

Chedzhemov T.B. Judicial investigation. – M.: Legal. lit., 1979. – P. 9.

Shafer S.A. Evidence and proof in criminal cases: problems of theory and legal regulation. - Togliatti: Volga University named after. 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. Author's abstract. diss. for academic competition Doctor of Law degrees Sciences. - Voronezh, 1998. - P. 152.

Grigorieva N. Principles of criminal proceedings and evidence // Russian justice. - 1995. - No. 8. - P. 40.

Smirnov A.V. Criminal justice reforms of the late 20th century and discursive competition // Journal of Russian Law. - 2001. - No. 12. / http://kalinovsky-k.narod.ru/b/sav-2001.htm.

Shamardin A.A. Some aspects of consolidating the elements of the principle of dispositiveness in the Code of Criminal Procedure of the Russian Federation // The role of university science in the regional community: Materials 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.