Share E., candidate legal sciences, Associate Professor, Professor of the Department of Criminal Law and Criminal Procedure of the Academy of the FSB of the Russian Federation.

The criminal procedure law includes the testimony of a suspect, accused, given during pre-trial proceedings in the case in the absence of a defense attorney, including cases of refusal of a defense attorney, and not confirmed by the suspect accused in court (clause 1, part 2, article 75 of the Code of Criminal Procedure). Such a radical decision received an ambiguous assessment from proceduralists.

Some consider this norm as an important guarantee of the protection of the rights of the suspect and accused, the legality of interrogation methods pre-trial stages, a means that narrows the possibility of using unacceptable measures to obtain testimony from specified persons, a step towards rule of law and advocate for its preservation in the text of the law<1>. Others see in it an extreme expression of concern for the comfort of the suspect and accused, trampling on common sense, surpassing the constitutional idea of ​​​​the inadmissibility of evidence, redundancy, a return to the theory of formal evidence, insisting on its exclusion from the law<2>.

<1>See: Mikhailovskaya I. Personal rights - a new priority of the Criminal Procedure Code of the Russian Federation // Russian Justice. 2002. N 7. P. 3; Lupinskaya P. Evidence and proof in a new criminal trial // Russian justice. 2002. N 7. P. 5 - 6; Smirnov A.V., Kalinovsky K.B. Commentary on the Criminal Procedure Code Russian Federation/ Under general ed. A.V. Smirnova. 2nd ed., add. and processed St. Petersburg, 2004. P. 216; Gorbachev A.V. On the admissibility of evidence given by a person against himself // Lawyer's practice. 2004. N 2.
<2>See: Boykov A. New Code of Criminal Procedure Russia and the problems of fighting crime // Criminal law. 2002. N 3. P. 65; Kuzmina O.V., Sosnovikov A.B. Procedural provision accused in the court of first instance and adversarial proceedings // Lawyer's practice. 2003. N 3; Centers B. Novels of the criminal procedural law and constitutional rights and human freedoms // Legality. 2003. N 7. P. 20; Bykov V.M., Sitnikova T.Yu. Reasons and procedural order recognizing evidence as inadmissible under the Code of Criminal Procedure of the Russian Federation // Jurisprudence. 2004. N 5. P. 143 - 144.

Passions during the discussion of this norm ran high to such an extent that its fate was declared an indicator of the further political, social and economic life of Russia, and its exclusion from the Code was the beginning of Russia’s gravity towards a police state<3>. The first part of this statement generally does not raise any objections, but we cannot agree with the conclusion drawn from it, and for reasons of principle. On the contrary, the removal of this norm from the text of the law will become evidence further development in our country the foundations of democratic, legal and social state. It is this approach in modern conditions that will contribute to the proper protection of rights and legitimate interests persons and organizations who have suffered from crimes, protecting individuals from illegal and unfounded accusations, convictions, and restrictions on their rights and freedoms.

<3>See: Gorbachev A.V. Decree. slave.

In the norm under consideration, the legislator unreasonably, in our opinion, expanded the requirement of inadmissibility of evidence. Formulated in this way, it came into conflict not only with the requirement of admissibility arising from the Code of Criminal Procedure of the Russian Federation, but also with a number of principles of criminal proceedings, most of which are constitutional. It's about on the principles of legality, the right of the suspect and accused to defense, freedom to evaluate evidence, the independence of judges and their subordination only to the law, adversarial and equal rights of the parties, publicity.

Inconsistency with clause 1, part 2, art. 75 of the Code of Criminal Procedure, related provisions of paragraph 2, part 4, art. 46, paragraph 3, part 4, art. 47, other articles of the Code of Criminal Procedure, the principles mentioned above indicate that these norms do not correspond to the purpose of criminal proceedings expressed in Art. 6 Code of Criminal Procedure.

Such fundamental contradictions contained in the text of the law inevitably have a very negative impact on the activities of almost all subjects of criminal proceedings, objectively complicating the proper implementation of their respective criminal procedural functions, during which they realize their procedural goals or interests. All this leads to a weakening of the protection of the interests of the individual, society and the state in criminal proceedings. An unjustified expansion of the requirement of inadmissibility creates the preconditions for this form to absorb the content of evidence and the content of the evidentiary process as a whole. The reality of these consequences is evidenced by the legal mechanism created by the legislator himself, which allows blocking all criminal proceedings<4>. These conclusions are based on the following arguments.

<4>We drew attention earlier to the possibility of blocking the process of proof in criminal cases by this requirement of the law (see: Dolya E.L. On evidence, proof and the use in proving the results of operational investigative activities according to the Code of Criminal Procedure of the Russian Federation // State and Law. 2002. No. 10 . pp. 112 - 113).

According to Part 1 of Art. 75 of the Code of Criminal Procedure, which develops the constitutional requirement on the inadmissibility of using evidence obtained in violation of the law in the administration of justice. federal law(Part 2 of Article 50 of the Constitution of the Russian Federation), evidence obtained in violation of the requirements of the Code of Criminal Procedure of the Russian Federation is unacceptable. The fact that, when establishing the criterion of inadmissibility of evidence, the legislator proceeds precisely from violations of the requirements of the Code of Criminal Procedure when receiving it, is also evidenced by paragraph 3 of Part 2 of Art. 75, according to which to inadmissible evidence includes other evidence obtained in violation of the requirements of the criminal procedure law. The Plenum takes a similar position on this issue. Supreme Court RF<5>.

<5>According to Part 2, Clause 16 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8, evidence must be considered obtained in violation of the law (inadmissible), when during its “collection and consolidation the human and civil rights guaranteed by the Constitution of the Russian Federation or established criminal procedure legislation, the procedure for collecting and securing it, as well as if the collection of evidence was carried out by an inappropriate person or body or as a result of actions not provided for by procedural rules."

The legal requirement of admissibility imposed on the form of evidence represents a specification of the principle of legality in relation to the source and method of its collection. In other words, evidence obtained from sources established by law and in the manner prescribed by law is admissible. This provision fully applies to the testimony of the suspect and accused under consideration.

The law does not establish the mandatory participation of a defense lawyer in all interrogations of the suspect and accused. It does not oblige the investigator to ensure the participation of a defense lawyer in all interrogations of these persons.<6>. Moreover, it is possible to investigate and consider a criminal case without the participation of a defense lawyer at all (clause 1, part 1, article 51, article 52 of the Code of Criminal Procedure). Despite the fact that such testimony is obtained in compliance with the admissibility requirement for evidence in general and for the testimony of the suspect and accused in particular, i.e. in compliance with all the requirements of the Code of Criminal Procedure, the legislator, contrary to the principle of legality, prescribes that they be recognized as unacceptable. Thus, this order is nothing more than a direct violation constitutional principle legality enshrined in the Code of Criminal Procedure by the legislator himself.

<6>This condition does not apply to cases where there is a direct provision for this in the law or when these subjects request the participation of a defense lawyer in the interrogation.

The deviation from the idea of ​​legality, expressed in the norm in question, naturally led to the fact that it came into conflict with other constitutional principles of criminal proceedings, which are associated with the implementation of this prescription in the criminal process in general and in the process of proof in particular. The content of the principle of legality is manifested in compliance with the content of other principles of legal proceedings; deviation from it objectively limits their action and vice versa. There is no other option.

We are talking primarily about the principle of ensuring the suspect and accused the right to defense (Article 16 of the Code of Criminal Procedure). The enshrinement in the law of a provision that made the decision on the issue of recognizing admissible the testimony under consideration dependent on the participation of the defense attorney in the interrogation and the subsequent confirmation of this testimony by the suspect and accused in court, led to the fact that it came into conflict with the content of this principle and the norms of the Code of Criminal Procedure, in which it is being realized.

The right of the suspect or accused to testify and explain is the most important element of their right to defense and belongs to them. They have the right to use this right at their own discretion. The law allows that the suspect and the accused can exercise the right to defense in person or with the help of a defense lawyer (Part 1 of Article 16 of the Code of Criminal Procedure). The possibility of its implementation by these subjects cannot in all cases be associated with the participation or non-participation of a defense lawyer in their interrogation. The investigator is obliged to interrogate the suspect and accused when they make a request to do so.

It is legal and acceptable that a suspect or accused, without refusing a defense lawyer, may demand that the investigator interrogate them in his absence, wanting to assist the investigation as quickly as possible and prevent the onset of dire consequences. This may occur, for example, when investigating cases of terrorism or hostage-taking, when the lives of many people will directly depend on the speed of obtaining evidence.

An attempt by the investigator to delay such an interrogation until the participation of a defense attorney in it is ensured will limit the voluntariness of the suspect or accused to testify. It should be regarded as a refusal to satisfy the request of these subjects for interrogation, which in such situations entails a violation of not only the principle of the right to defense, but also the principle of legality.

It is impossible to condition the admissibility of the evidence under consideration and its confirmation by the suspect and accused in court. The law does not and cannot contain requirements for to the specified subjects confirm their previous testimony. It would not be consistent with their right to freely testify and choose their defense, which are also important elements of the right to defense<7>.

<7>In this regard, we cannot agree with the conclusion of A. Gorbachev, contained in the said work, that the norms enshrined in clause 1, part 2, art. 75, clause 2. part 4 art. 46, paragraph 3, part 4, art. 47, part 2 art. 52 of the Code of Criminal Procedure ensure the impossibility of a suspect or accused from arbitrarily refusing evidence previously given voluntarily.

Thus, in principle, it is incorrect to retroactively link the admissibility of the evidence in question, obtained in pre-trial proceedings, with the presence of a defense lawyer during interrogation and its subsequent confirmation by the accused in court.

By creating the prerequisites for recognizing the analyzed evidence as inadmissible, requiring the court to recognize (consider) it as such, the legislator also created a contradiction with the principle of freedom to evaluate evidence. In accordance with the procedural idea underlying this principle, judge, jurors evaluate evidence according to their inner conviction, based on the totality of evidence available in a criminal case, guided by the law and conscience. Moreover, no evidence has pre-established force (Article 17 of the Code of Criminal Procedure).

Is it possible to talk about the operation of the principle of freedom to evaluate evidence if, in the absence of violations of the law during its collection in pre-trial proceedings, the law itself orders judges to consider them inadmissible, prohibited from delving into their content, examining them in conjunction with the available evidence?

Isn’t this a deviation from the provisions enshrined in Part 2 of Art. 17 of the Code of Criminal Procedure, according to which, when assessing the totality of evidence, no evidence for judges has a predetermined force?

Can judges in such conditions freely evaluate evidence according to their inner conviction, maintaining impartiality, if the law by which they must be guided is biased?

IN in this case There can be no talk at all about the assessment of this evidence by judges according to their inner conviction, based on the totality of evidence available in a criminal case. The law unconditionally requires that such testimony be declared invalid, without regard to the conscience with which judges must do so. The decision by judges under the above conditions to recognize the testimony of the accused as inadmissible contradicts all the requirements arising from the principle of freedom to evaluate evidence.

The norm in question also undermines the effect of another constitutional principle - the independence of judges and their subordination only to the law (Part 1 of Article 120 of the Constitution). The duty of judges established by law to clearly recognize the evidence of the accused as inadmissible directly limits their independence in resolving this issue. Judges will not be able to remain independent and obey only the law, since the law itself forces them to act contrary to the law. Whenever, in conditions of compliance with all the admissibility requirements of the Code of Criminal Procedure for the legality of the source and method of collecting the testimony of the accused (suspect), the judges recognize this testimony as inadmissible, they will lose their independence in resolving this issue and will become dependent not on the law, but on the position busy side of the defense. That is, whether the defense decides to exercise in pre-trial proceedings the right to participate in the interrogation of the suspect and accused, and in court - the right to refuse testimony obtained at the stage preliminary investigation.

The provision enshrined in clause 1, part 2, art. 75, also represents a deviation from such a constitutional principle of criminal proceedings as adversarialism and equality of the parties (Part 3 of Article 123 of the Constitution). It puts the defense in an advantageous position over the prosecution both in pre-trial proceedings and when considering the case in court, violating the equality of the parties and undermining the adversarial principle.

In this regard, it is correctly noted in the literature that in order to overcome negative consequences actions part 1 and clause 1 part 2 art. 75 Code of Criminal Procedure for the investigator there is nothing left but to ensure the presence of a defense attorney during the interrogation of the suspect, accused and other investigative actions with his participation, contrary to the will and desire of the interrogated person. It is along this path that I am forced to lately It is a practice where often a defense lawyer is called for every interrogation of a suspect, whether he wants it or not.

This provision allows the accused and the defense lawyer to paralyze the activity of interrogators and investigators in establishing the circumstances of the crime committed, and in court - to nullify the efforts of the prosecutor to support the state prosecution. As a result, the effectiveness of criminal prosecution, and thereby the protection of individuals, society and the state from criminal attacks, becomes dependent only on the position of one side, the defense, unreasonably strengthened by the legislator.

The analyzed norm is also inconsistent with the public beginning of the criminal process, according to which the initiation of a criminal case, its investigation, consideration and final resolution are carried out on behalf of the state, in the public interest, according to job responsibilities and regardless of anyone. The threat of declaring inadmissible the testimony of a suspect or accused, obtained during pre-trial proceedings in the absence of a defense lawyer and not confirmed in court, inevitably leads to the passivity of the investigative bodies and the prosecutor, and makes them unjustifiably dependent on the position of the defense. In this case, the court will also be dependent on the behavior of the defense.

The effectiveness of the implementation of the function of criminal prosecution in the situation under consideration depends not on compliance with the requirements of the law, but on the participation of the defense attorney in the interrogation of these persons and their confirmation in court of previously given testimony. In cases of interrogation of a suspect or accused in the absence of a defense lawyer, the sword of Damocles will constantly hang over the preliminary investigation bodies by declaring the evidence received inadmissible. As a result, a timely solution to the issue of attracting criminal liability, the proper resolution of a criminal case by the court, and therefore the protection in criminal proceedings of the legally protected interests of the individual, society and the state, contrary to the public principle, become dependent not on the execution by the authorities of the law, but on the participation in the interrogation of the defense lawyer and the confirmation by the accused in court of the testimony obtained from him in pre-trial proceedings. Naturally, the accused, and even the defense, are unlikely to be inclined to such behavior.

Redundancy of clause 1, part 2, art. 75 of the Code of Criminal Procedure is also manifested in the fact that, according to Part 1 of this article (establishing the rule on the inadmissibility of evidence), recognition of the said evidence as inadmissible entails deprivation of its legal force, the impossibility of using it to substantiate the accusation and use it to prove any of the circumstances provided for in Art. 73 Code of Criminal Procedure. Logical error made by the legislator (clause 1, part 2, article 75, specifying general rule on the inadmissibility of evidence, came into conflict with Part 1 of this article, which establishes this rule), poses a great danger to practice.

Consistent implementation of the analyzed norm will confront judges with the need to exclude from the number of admissible evidence, for example, objects recognized as material evidence discovered as a result of such investigative actions (search, seizure), the basis for which was the testimony of the accused and suspect, given during the preliminary investigation in the absence defense lawyer and not confirmed by them in court.

The situation will be further aggravated if defense attorneys, before the investigative bodies themselves discover traces, instruments of crime, objects of criminal assault, using the norm in question, directly recommend that suspects and accused give truthful testimony about their whereabouts in the absence of a defense lawyer with a view to subsequently refusing such testimony in court. The results of using such tactics on the part of the defense are clear - the recognition of material evidence obtained on the basis of inadmissible testimony of the suspect or accused is also inadmissible. It is difficult to imagine that the defense would, in practice, refuse to use this method of defense if the legislator himself created not only the appropriate grounds for this, but also a legal mechanism for its implementation<8>.

<8>The fact that defenders can resort to more “radical” methods of defense is evidenced by the decision of the qualification commission of the Moscow Bar Association, which checked the legality of the actions of lawyer O. Artyukhova, who defended the accused Khodorkovsky. After a meeting with her client, Artyukhova found a note, which, according to the staff and management of pre-trial detention center No. 1, testified to an attempt by the accused Khodorkovsky to persuade witnesses in his case to give false testimony. According to this decision, according to the capital's lawyers, they can defend their client both legally and illegally. See: Sharov A. Reznik did not change his position // Russian newspaper. 2004. February 13.

Following the logic of the legislator under consideration, in practice it will be necessary to consider not only the indicated testimony of the suspect, accused and material and other evidence obtained with their use as having no legal force, but also, taking into account their inadmissibility, to recognize as legally void all subsequent decisions that were based on the listed inadmissible evidence. This conclusion literally follows from the content of Part 1 of Art. 75: “Inadmissible evidence has no legal force and cannot be used as the basis for an accusation, or used to prove any of the circumstances provided for in Article 73 of this Code.” According to this regulation, court decisions on investigative actions limiting the constitutional rights and freedoms of citizens, taken using the specified inadmissible evidence, should also lose legal force.

Such consequences will be especially visible in cases where the accused, exercising his right to defense, generally refuses to testify in court. There will be a situation directly provided for in clause 1, part 2, art. 75 of the Code of Criminal Procedure, - in a criminal case there is testimony of the accused, given during pre-trial proceedings in the absence of a defense lawyer and not confirmed by the accused in court. The deadlocked nature of the situation is further aggravated by the fact that, following the law, in this case it is unacceptable to read out in court the testimony of a suspect or accused given during pre-trial proceedings (Clause 1, Part 1, Article 276 of the Code of Criminal Procedure).

The fact that the rule under consideration on the inadmissibility of evidence should apply not only to the testimony of the suspect and accused given during pre-trial proceedings in a criminal case in the absence of a defense lawyer and not confirmed by the suspect accused in court, but also to evidence obtained on their basis is evidenced by and position Constitutional Court RF, expressed by him in the descriptive part of the Determination on the complaint of citizen V.N. Demyanenko. In accordance with it, the testimony of a suspect or accused given during pre-trial proceedings in a criminal case in the absence of a defense lawyer and not confirmed by the suspect or accused in court is considered unacceptable, which, based on the provisions of Art. 50 (part 2) of the Constitution of the Russian Federation, excludes the possibility of any, direct or indirect, use of the information contained therein<9>.

<9>Ruling of the Constitutional Court of the Russian Federation of February 6, 2004 N 44-O on the complaint of citizen V.N. Demyanenko. to violate it constitutional rights provisions of Articles 56, 246, 278 and 355 of the Criminal Procedure Code of the Russian Federation.

In other words, such testimony of the suspect and accused, according to the position of the Constitutional Court of the Russian Federation, cannot be used to collect new evidence, since in this case they too should be declared inadmissible<10>. And all accepted with their use both before and after the recognition of these indications as unacceptable procedural decisions must lose legal force. IN otherwise In a criminal case, an extremely absurd situation will arise. The same testimony of the suspect and the accused, after being declared inadmissible by the court, will be prohibited from being used as evidence in the future, but at the same time the same testimony will retain legal force and will be used as admissible in evidence at the stage of preliminary investigation during proceedings on the same criminal case!

<10>In this regard, we cannot agree with the statement that the Constitutional Court of the Russian Federation in the above-mentioned Determination supported legal position legislator, expressed in clause 1, part 2, art. 75 of the Code of Criminal Procedure, regarding the restrictions it contains on the freedom to evaluate evidence by judges. See: Bykov V.M., Sitnikova T.Yu. Decree. slave. pp. 143 - 144.

Thus, the analyzed norm creates the prerequisites not only for recognizing as legally void a significant part of the evidence collected within the framework of the preliminary investigation, intermediate and final decisions taken on their basis (in fact, all materials of the preliminary investigation), but also some court decisions. In particular, the decisions of the investigative bodies to charge as an accused, recognize as a victim, indictment, a judge’s decision to carry out investigative actions related to the restriction of constitutional rights and freedoms of citizens, to appoint preliminary hearing, a court hearing with all the ensuing consequences.

P. Lupinskaya sees the importance of the norm in question in ensuring that no investigative actions are carried out that give rise to doubts about the reliability of information due to its receipt using threats, violence, or other prohibited methods.<11>. It seems wrong, therefore, to question the law-abiding nature of all interrogators and investigators. In addition, based on this logic, for the same reason, the testimony of the victim and witness, obtained during the preliminary investigation in the absence of a lawyer and not confirmed by these persons in court, should have been declared inadmissible. However, the legislator did not follow this path. And even if we agree that the testimony of suspects and accused persons in the absence of a defense lawyer gives reason to believe that in this case they are testifying against themselves under duress, wouldn’t it be simpler in principle to exclude the possibility of such situations by enshrining in the law the obligation of the defense attorney to participate? in all interrogations of suspects and accused<12>? The analyzed requirement of the law can push investigators, prosecutors and judges to attempts (illegally) to circumvent it and thereby fill the gap in the evidence base of the prosecution, as was the case, for example, in the already mentioned criminal case against Demyanenko. Having been interrogated during pre-trial proceedings as a suspect and accused, he confessed in the absence of a defense lawyer. Subsequently, on court hearing, refused to testify. October district court Krasnoyarsk, where the criminal case was being considered, at the request of the prosecutor, summoned and interrogated at the court hearing as witnesses the investigators who interrogated Demyanenko as a suspect and accused during pre-trial proceedings. The investigators' testimony, as confirming the defendant's guilt, along with other evidence, was used by the court as the basis for the guilty verdict. The Constitutional Court of the Russian Federation gave a negative assessment to this method of replenishing evidence. But the fact is that judicial practice took a step in this direction (corrected by the decision of the Constitutional Court of the Russian Federation), confirms the correctness of the concerns we expressed.

<11>See: Lupinskaya P. Decree. slave. P. 5. I. Mikhailovskaya evaluates this norm positively, who sees in it a significant guarantee of the legality of interrogation methods at the pre-trial stages. See: Mikhailovskaya I.B. Decree. slave. P. 3. Shares the position of P. Lupinskaya and I. Mikhailovskaya on this issue, A. Smirnov, who believes that the norm in question is “an important guarantee against self-incrimination and admission of guilt by the accused and suspect under the influence of physical or mental violence, the use of which, thanks to this norm , practically loses its meaning." See: Smirnov A.V., Kalinovsky K.B. Decree. slave. P. 216. Thanks to the application of this norm, it practically makes no sense for investigative bodies to interrogate a suspect accused in the absence of a defense lawyer, since they will constantly be under the threat of recognizing the evidence obtained as inadmissible if the accused does not confirm it in court.
<12>It is noteworthy that the inclusion of such a proposal in the text of the draft Code of Criminal Procedure of the Russian Federation is against working group, who prepared the project, were primarily objected to by representatives of the legal profession.

The analysis carried out allows us to conclude that clause 1, part 2, art. 75, related provisions of paragraph 2, part 4, art. 46, paragraph 3, part 4, art. 47, other articles of the Code of Criminal Procedure of the Russian Federation and the need to exclude them from the text of the law.

Most in a fast way the implementation of this proposal may be a corresponding reaction of the Constitutional Court of the Russian Federation to these norms. Prior to this, taking into account the direct constitutional requirement, according to which the Constitution of the Russian Federation has supreme legal force, direct effect, and laws adopted in the Russian Federation must not contradict the Constitution of the Russian Federation (Part 1 of Article 15 of the Constitution of the Russian Federation), the specified norms of the Code of Criminal Procedure of the Russian Federation in the production cannot be used by judges in criminal cases. This decision is consistent with the position of the Plenum of the Supreme Court of the Russian Federation: “In accordance with this constitutional provision, courts, when considering cases, should evaluate the content of the law or other normative legal act regulating legal relations considered by the court, and in all necessary cases apply the Constitution of the Russian Federation as an act of direct action"<13>.

<13>Paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice.”

It is necessary to enshrine in the law the mandatory participation of a defense lawyer and a prosecutor when charges are brought against the accused and in the first interrogation of the accused after charges are brought against him.

The norms of the criminal procedure law challenged by the applicants do not imply the admissibility of conducting a preliminary investigation official body of inquiry, which is subject to questioning as a witness during its conduct, and giving testimony on procedural issues of the initial stage of the investigation during trial in itself does not indicate that the investigation was carried out by the person subject to challenge, despite the fact that a challenge to the person who carried out the preliminary investigation, or petitions to exclude the evidence obtained by him in connection with the inadmissibility of his participation in the case as a person having a personal interest in the outcome of the case is not excluded or who performed a function unusual for him - such statements and petitions are subject to mandatory consideration (part two of Article 62, and Article 120 of the Code of Criminal Procedure of the Russian Federation).

1. Evidence obtained in violation of the requirements of this Code is inadmissible. Inadmissible evidence has no legal force and cannot be used as the basis for an accusation or used to prove any of the circumstances provided for by this Code.

2. Inadmissible evidence includes:

1) testimony of a suspect, accused, given during pre-trial proceedings in a criminal case in the absence of a defense lawyer, including cases of refusal of a defense lawyer, and not confirmed by the suspect, accused in court;

2) testimony of a victim, a witness, based on a hunch, assumption, rumor, as well as the testimony of a witness who cannot indicate the source of his knowledge;

2.1) objects, documents or information included in the proceedings of a lawyer on the affairs of his clients, obtained during operational search activities or investigative actions, with the exception of objects and documents specified in part one of this Code;

3) other evidence obtained in violation of the requirements of this Code.

The provisions of Article 75 of the Code of Criminal Procedure of the Russian Federation are used in the following articles:

• Suspect

  2) give explanations and testimony regarding the suspicions against him or refuse to give explanations and testimony. If the suspect agrees to testify, he must be warned that his testimony can be used as evidence in a criminal case, including if he subsequently refuses this testimony, with the exception of the case provided for in paragraph 1 of part two of Article 75 of the Code of Criminal Procedure of the Russian Federation ;

• Accused

  3) object to the accusation, testify on the charge brought against him or refuse to testify. If the accused agrees to testify, he must be warned that his testimony can be used as evidence in a criminal case, including if he subsequently refuses this testimony, with the exception of the case provided for in paragraph 1 of part two of Article 75 of the Code of Criminal Procedure of the Russian Federation. ;

• Rules for evaluating evidence

  2. In the cases specified in part two of Article 75 of the Code of Criminal Procedure of the Russian Federation, the court, prosecutor, investigator, inquirer recognizes the evidence as inadmissible.

• Procedure for considering a crime report

  1.2. Information obtained during the verification of a crime report can be used as evidence, subject to the provisions of Articles 75 and 89 of the Code of Criminal Procedure of the Russian Federation. If, after the initiation of a criminal case, the defense or the victim files a petition for additional or repeated forensics, then such a request must be granted.

• Judicial order obtaining permission to conduct an investigative action

  5. In exceptional cases, when the inspection of a home, a search and seizure of a home, a personal search, as well as the seizure of an item pledged or deposited in a pawnshop, the seizure of property specified in part one of Article 104.1 of the Criminal Code of the Russian Federation does not tolerate delays, these investigative actions can be carried out on the basis of a resolution of the investigator or inquiry officer without receiving court decision. In this case, the investigator or inquiry officer, no later than 3 days from the start of the investigative action, notifies the judge and the prosecutor about the investigative action. Attached to the notification are copies of the resolution to carry out the investigative action and the protocol of the investigative action to verify the legality of the decision...

1. Evidence obtained in violation of the requirements of this Code is inadmissible. Inadmissible evidence has no legal force and cannot be used as the basis for an accusation or used to prove any of the circumstances provided for.

2. Inadmissible evidence includes:

1) testimony of a suspect, accused, given during pre-trial proceedings in a criminal case in the absence of a defense lawyer, including cases of refusal of a defense lawyer, and not confirmed by the suspect, accused in court;

2) testimony of a victim, a witness, based on a hunch, assumption, rumor, as well as the testimony of a witness who cannot indicate the source of his knowledge;

2.1) objects, documents or information included in the proceedings of a lawyer on the affairs of his clients, obtained during operational search activities or investigative actions, with the exception of objects and documents specified in part one of Article 81 of this Code;

3) other evidence obtained in violation of the requirements of this Code.

Commentary to Art. 75 Code of Criminal Procedure of the Russian Federation

2. Paragraph 3 of the commented article covers, in particular, the following typical situations:

- when an investigative action to collect evidence was carried out by a person not authorized to do so. So, for example, if an operative interrogated a witness without an order from the investigator in charge of the criminal case, the testimony obtained cannot be considered admissible;

- when an investigative action, in the production of which, according to the law, the participation of attesting witnesses is mandatory, for example a search, is carried out without their participation;

- when testimony is obtained using deception, threats and other illegal measures;

- when an object or document has an unknown origin and this circumstance gives rise to insoluble doubts when assessing its reliability;

- when evidence was obtained as a result of an investigative action, the participants of which were not explained their rights, duties and responsibilities;

- when the investigative procedure is violated and this violation casts doubt on the reliability of the results obtained (for example, a person is presented for identification in a group of outwardly sharply different individuals).

Criminal Procedure Code, N 174-FZ | Art. 75 Code of Criminal Procedure of the Russian Federation

Article 75 of the Code of Criminal Procedure of the Russian Federation. Inadmissible evidence (current version)

1. Evidence obtained in violation of the requirements of this Code is inadmissible. Inadmissible evidence has no legal force and cannot be used as the basis for an accusation, or used to prove any of the circumstances provided for in Article 73 of this Code.

2. Inadmissible evidence includes:

1) testimony of a suspect, accused, given during pre-trial proceedings in a criminal case in the absence of a defense lawyer, including cases of refusal of a defense lawyer, and not confirmed by the suspect, accused in court;

2) testimony of a victim, a witness, based on a hunch, assumption, rumor, as well as the testimony of a witness who cannot indicate the source of his knowledge;

2.1) objects, documents or information included in the proceedings of a lawyer on the affairs of his clients, obtained during operational search activities or investigative actions, with the exception of objects and documents specified in part one of Article 81 of this Code;

2.2) information obtained during operational search activities or investigative actions about the fact that the suspect or accused presented special declaration in accordance with the Federal Law "On Voluntary Declaration individuals assets and accounts (deposits) in banks and on making changes to individual legislative acts Russian Federation" and (or) the specified declaration and information contained in the specified declaration and documents and (or) information attached to the specified declaration, except for cases where the declarant submits copies of the specified declaration and documents and (or) information for inclusion in the criminal case;

2.3) information obtained during operational search activities or investigative actions about the fact of indicating a suspect accused in a special declaration submitted by another person in accordance with the Federal Law “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation", and (or) information about the suspect, accused, contained in the said declaration and documents and (or) information attached to the said declaration, except in cases where the declarant submits copies of the said declaration and documents and (or) information for involvement in a criminal case;

3) other evidence obtained in violation of the requirements of this Code.

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Commentary to Art. 75 Code of Criminal Procedure of the Russian Federation

1. Admissibility is the compliance of evidence with the requirements of criminal procedural law, i.e. whether it has due process. Deviation from this form may lead to the inadmissibility of evidence, i.e. deprivation of its legal force and impossibility of using it in the process of proof. In part 1 room. article, the inadmissibility of evidence is associated with a violation only of the requirements of the Code of Criminal Procedure itself, however, according to Part 2 of Art. 50 of the Constitution of the Russian Federation “in the administration of justice, the use of evidence obtained in violation of federal law is not permitted.” The Constitution, therefore, recognizes as inadmissible evidence collected by subjects of evidence in violation of any federal law, and not just the Code of Criminal Procedure. Constitutional norm in the event of a conflict, it has an advantage over the industry one, therefore, Part 1 of Art. 75 of the Code of Criminal Procedure should, in our opinion, be interpreted broadly - in accordance with the text of the Constitution of the Russian Federation. Otherwise, evidence obtained by the investigative body, for example, as a result of illegal operational-search activities and formalized in external compliance with the criminal procedural form, could be considered admissible. For example, operational employees of the investigative agency carried out a test purchase of a narcotic substance with subsequent entry into a home against the will of the persons living there without obtaining prior permission from the court, despite the fact that this is required by Part 2 of Art. 8 Federal Law "On operational investigative activities". If the narcotic substance obtained during such a purchase and the banknotes found on the seller were inspected in compliance with procedural rules, then in the literal sense com. Articles of the Code of Criminal Procedure they should have been recognized as admissible evidence, since the requirements of this Code were not formally violated. However, this contradicts the Federal Law “On Operational-Investigative Activities” and the Constitution of the Russian Federation, therefore evidence collected in this way is actually unacceptable. Otherwise may lead to substitution procedural actions operational-search for the purpose of illegally obtaining future evidence, when procedural form used as a “screen” to violate the constitutional rights of individuals.

The same problem arises in connection with the use of equipment, tools, devices and techniques by specialists and experts. According to Part 1 of Art. 13 of the Law of the Russian Federation of April 27, 1993 N 4871-1 "On ensuring the uniformity of measurements" state metrological control and supervision, carried out to verify compliance with metrological rules and norms, apply, in particular, to measurements carried out on behalf of the court, prosecutor's office, arbitration court, government agencies management of the Russian Federation. That is, expert methods and techniques associated with any measurements must meet the requirements state standards in the field of measurements, and measuring instruments and other equipment used by specialists and experts during investigative actions must be certified. Violation of these requirements should entail the recognition of the evidence obtained as inadmissible.

2. In part two com. The article provides an open list of cases when evidence should be declared inadmissible. Thus, inadmissible evidence includes the testimony of a suspect or accused given during pre-trial proceedings in a criminal case in the absence of a defense lawyer and not confirmed by him in court (clause 1, part 2, article 75). This provision serves as an important guarantee against self-incrimination and admission of guilt by the accused and suspect under the influence of physical or mental violence, the use of which, thanks to this norm, practically loses all meaning. It is noteworthy that the condition of the absence of a defense attorney also includes the refusal of a defense attorney by the accused or suspect himself. In this way, a barrier is put in place to the attempts of unscrupulous investigators and investigators to persuade the accused and suspect to formally voluntary refusal from a defense attorney, which is usually followed by a forced refusal of a defense attorney or an illegal attempt to “exchange” confessions for easing the situation of the accused or suspect (a promise not to use detention as a preventive measure, to assist in the termination of criminal prosecution, etc.). At the same time, it is prohibited to reproduce the testimony of a suspect, accused, given during pre-trial proceedings in a criminal case in the absence of a defense lawyer and not confirmed by him in court, through interrogation as a witness, interrogator or investigator who carried out the inquiry or preliminary investigation.

Judicial practice broadly interprets the norm of Part 2 of Article 75 of the Code of Criminal Procedure of the Russian Federation, extending it to cases of absence of a teacher or psychologist when receiving testimony, when his participation by force of law (Article 425 of the Code of Criminal Procedure of the Russian Federation) was mandatory.

3. In paragraph 2 of part 2 com. The article confirms the prohibition on the testimony of a victim or witness if it is based on a guess, assumption, rumor, as well as the testimony of a witness who cannot indicate the source of his knowledge. At the same time, unlike the testimony of a witness, the legislator did not consider it necessary to declare the testimony of the victim inadmissible if he cannot indicate the source of his knowledge. Actually, testimony without reference to a source of knowledge is testimony “by hearsay.” In our opinion, in this case there is a gap in legal regulation. Considering general principle immediacy of the examination of evidence, prohibiting the use of data whose original source is unknown, one should come to the conclusion that in fact the legislator, in relation to the testimony of the victim, should have had in mind the same restriction on the use of hearing testimony as in relation to the witness. Therefore, it seems that this prohibition, by analogy with the law, is lawfully extended to the testimony of the victim.