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Detention is a stressful situation, the reaction to which is difficult to predict. Meanwhile, it is the first actions of the detainee that may be important for his further protection.
For the investigator, the detainee is a significant source of information, and the investigative actions carried out with him at the first stage are the basis for forming an evidence base for a criminal case.
Therefore, it is necessary to navigate the issues that will have to be quickly resolved in the first hours of investigative actions, and without having full and detailed information about the scale of the problem, and, which is very likely, in the absence of qualified legal assistance.
One of the ways to form evidence may be to interrogate the witnesses as witnesses, where they will indicate that the explanations were given to the detainees voluntarily and without pressure. A witness is a person who is not interested in the outcome of the criminal case, involved to certify the content of the investigative action (Article 60 of the Criminal Procedure Code of the Russian Federation). The lack of interest in the outcome of the case may make their testimony a significant contribution to the evidence base.
In the future, if the detainee refuses these explanations, it is possible to talk about the controversial nature of their evidentiary value, especially since they were given in the absence of a lawyer. And yet, the very fact of giving them can play a negative role in the course of further defense. Defense in a criminal case is not only a formal-bureaucratic, but also a creative, strategic process, and it must be monolithic, consistent in all details.
It is necessary to clearly understand what explanations are given at each stage of the formation of evidence and why this is done. It should also be remembered that when detained, a person has the right not to give any testimony (Articles 48, 51 of the Constitution of the Russian Federation) .
It is possible that the investigator will not provide an opportunity to immediately inform relatives of the detention, but will do so only after some time has passed. This is largely due to the fact that he needs to carry out such urgent investigative actions as a search or detention of other persons who, in his opinion, may be involved in the commission of a crime. Informing a wide range of people about the existence of a criminal case may contribute to obstructing the investigation.
In other cases, the investigator is obliged to give the accused the opportunity to make one phone call to notify close persons of his detention, and in the shortest possible time, no later than three hours from the moment of delivery to the investigator (Article 96 of the Criminal Procedure Code of the Russian Federation). You should insist that you be given this opportunity, and it is better to take advantage of it. You should not hope that everything will somehow resolve itself.
The investigator or operatives may assure that there is no point in the detainee inviting a lawyer at this stage and that, in extreme cases, they themselves will provide a defense attorney.
Do not rely on their promises, this is nothing more than manipulation. Here are just a few possible formulations:
All this is done so that the detainee begins to doubt the correctness of the participation of the defense attorney chosen by him, mistakenly believing that he can thus "quarrel" with the investigator, which will worsen his position in the criminal case.
It is necessary to remember that you cannot have common interests with either the investigator or the operatives. The task of the investigator is to expose the person committing a crime, and ideally - for the detainee to expose himself and this will simplify the investigator's work. The task of the detainee is not to aggravate his situation with his own actions. Without the presence of a professional defense attorney, it is extremely difficult to fulfill this task. The investigator is not suitable for the role of defense attorney and independent advisor, no matter what he says.
The participation of a qualified defense attorney will provide optimal conditions for a correct perception of the situation, for the exercise of rights, and a correct understanding of responsibilities. The defense attorney will help to explain and evaluate the charges brought without emotion, as well as to suggest the most effective methods of defense, and to monitor the correctness of the recording of testimony in the investigative protocols.
Remember: the right to receive assistance from a lawyer is guaranteed to everyone, regardless of the formal procedural status, recognition or non-recognition of the suspect. And of course, the right to assistance from a lawyer arises if law enforcement agencies take measures that actually restrict freedom and personal inviolability (including freedom of movement):
This is the position formulated by the Constitutional Court of the Russian Federation (see the resolution of 27.06.2000 No. 11-P) . It indicated that the fact of criminal prosecution and, consequently, the accusatory activity directed against a specific person can be confirmed by:
Since such actions are aimed at identifying incriminating facts and circumstances, the person must be given the opportunity to seek help from a defense attorney without delay.
If the investigator prevents this, you can make a handwritten note in the protocol about your readiness to participate in all investigative actions and give testimony, but only after consulting with the chosen defense attorney and ensuring his participation.
You must insist on your right and implement it. Consulting an independent attorney can help you look at the situation from a different angle and see other possible options for implementing your defense.
That is why the decision to give testimony must be deliberate and balanced, and there must be extremely compelling reasons for refusing previously given testimony. Otherwise, this testimony may be used in court as evidence in a criminal case.
Do you have doubts about the chosen position? Remember that Article 51 of the Constitution of the Russian Federation guarantees the right not to testify against oneself and close relatives from the moment of actual arrest. The accused also has the right to be given sufficient time and an opportunity to prepare for the defense, which he has the right to use and reflect this in the protocol (Part 3 of Article 47 of the Criminal Procedure Code of the Russian Federation).
The presence of a subjective view of the court and the investigator on the assessment of evidence in a criminal case is enshrined in law. Article 17 of the Criminal Procedure Code of the Russian Federation directly indicates that the investigator and the judge are free to assess evidence based on their inner conviction and the totality of evidence available in the criminal case, guided by the law and conscience.
Considering that decisions on criminal cases are made by living people, not a machine, then the defense in a criminal case must be built impeccably not only from a bureaucratic position. Forming an internal attitude towards the criminal case under investigation among all participants in the process is of colossal importance.
In addition, even despite the fact that oral communication with law enforcement officers is difficult to transform into evidence in a criminal case, the information they receive can be used against the accused with the help of other investigative and operational-search measures. At the very least, because law enforcement officers will gain an understanding of which direction to move for further investigation.
Defense in a criminal case is an extremely complex process that consists of many components. The lawyer and the accused must:
An important issue for the accused is to determine as many possible scenarios when choosing one or another defense position. And even the right not to testify must be used based on the specific conditions and circumstances that have arisen at the time of making this decision.
For the investigator, the detainee is a significant source of information, and the investigative actions carried out with him at the first stage are the basis for forming an evidence base for a criminal case.
Therefore, it is necessary to navigate the issues that will have to be quickly resolved in the first hours of investigative actions, and without having full and detailed information about the scale of the problem, and, which is very likely, in the absence of qualified legal assistance.
Detention at the scene of a crime
When detaining a person at the scene of a suspected crime, for example, when transferring or receiving money for dubious purposes, law enforcement officers draw up a report recording the seizure of property. The report is drawn up in the presence of two persons involved as witnesses. Any explanations given when drawing up the report (including recognition of the fact of committing a crime) may subsequently have evidentiary value in the criminal case.One of the ways to form evidence may be to interrogate the witnesses as witnesses, where they will indicate that the explanations were given to the detainees voluntarily and without pressure. A witness is a person who is not interested in the outcome of the criminal case, involved to certify the content of the investigative action (Article 60 of the Criminal Procedure Code of the Russian Federation). The lack of interest in the outcome of the case may make their testimony a significant contribution to the evidence base.
In the future, if the detainee refuses these explanations, it is possible to talk about the controversial nature of their evidentiary value, especially since they were given in the absence of a lawyer. And yet, the very fact of giving them can play a negative role in the course of further defense. Defense in a criminal case is not only a formal-bureaucratic, but also a creative, strategic process, and it must be monolithic, consistent in all details.
It is necessary to clearly understand what explanations are given at each stage of the formation of evidence and why this is done. It should also be remembered that when detained, a person has the right not to give any testimony (Articles 48, 51 of the Constitution of the Russian Federation) .
Notification of close relatives
When detained, the question arises of the need to notify close relatives about what is happening. Unwillingness to disturb loved ones by informing them about what happened can have negative consequences. After all, loved ones are capable of:- promptly contact a lawyer;
- provide assistance in providing qualified legal assistance;
- collect the necessary documents that positively characterize the identity of the detainee;
- collect medical documents that may form the basis for objections when choosing a preventive measure in the form of detention.
It is possible that the investigator will not provide an opportunity to immediately inform relatives of the detention, but will do so only after some time has passed. This is largely due to the fact that he needs to carry out such urgent investigative actions as a search or detention of other persons who, in his opinion, may be involved in the commission of a crime. Informing a wide range of people about the existence of a criminal case may contribute to obstructing the investigation.
In other cases, the investigator is obliged to give the accused the opportunity to make one phone call to notify close persons of his detention, and in the shortest possible time, no later than three hours from the moment of delivery to the investigator (Article 96 of the Criminal Procedure Code of the Russian Federation). You should insist that you be given this opportunity, and it is better to take advantage of it. You should not hope that everything will somehow resolve itself.
Demand a lawyer
The detainee has an inalienable right to use the assistance of a defense attorney from the moment of initiation of a criminal case or actual detention.The investigator or operatives may assure that there is no point in the detainee inviting a lawyer at this stage and that, in extreme cases, they themselves will provide a defense attorney.
Do not rely on their promises, this is nothing more than manipulation. Here are just a few possible formulations:
- "only those who have something to hide need a lawyer";
- "we're all our own here";
- “We have built a relationship of trust, and the participation of an invited lawyer undermines this trust”;
- "We've already proven everything, a lawyer won't help here, it's a waste of money."
All this is done so that the detainee begins to doubt the correctness of the participation of the defense attorney chosen by him, mistakenly believing that he can thus "quarrel" with the investigator, which will worsen his position in the criminal case.
It is necessary to remember that you cannot have common interests with either the investigator or the operatives. The task of the investigator is to expose the person committing a crime, and ideally - for the detainee to expose himself and this will simplify the investigator's work. The task of the detainee is not to aggravate his situation with his own actions. Without the presence of a professional defense attorney, it is extremely difficult to fulfill this task. The investigator is not suitable for the role of defense attorney and independent advisor, no matter what he says.
The participation of a qualified defense attorney will provide optimal conditions for a correct perception of the situation, for the exercise of rights, and a correct understanding of responsibilities. The defense attorney will help to explain and evaluate the charges brought without emotion, as well as to suggest the most effective methods of defense, and to monitor the correctness of the recording of testimony in the investigative protocols.
Remember: the right to receive assistance from a lawyer is guaranteed to everyone, regardless of the formal procedural status, recognition or non-recognition of the suspect. And of course, the right to assistance from a lawyer arises if law enforcement agencies take measures that actually restrict freedom and personal inviolability (including freedom of movement):
- detention by law enforcement agencies;
- forced drive;
- delivery to the inquiry and investigation authorities;
- containment in isolation.
This is the position formulated by the Constitutional Court of the Russian Federation (see the resolution of 27.06.2000 No. 11-P) . It indicated that the fact of criminal prosecution and, consequently, the accusatory activity directed against a specific person can be confirmed by:
- an act on the initiation of a criminal case against a given person;
- conducting investigative actions against him (search, identification, interrogation, etc.);
- other measures taken for the purpose of exposing him or indicating the existence of suspicions against him.
Since such actions are aimed at identifying incriminating facts and circumstances, the person must be given the opportunity to seek help from a defense attorney without delay.
If the investigator prevents this, you can make a handwritten note in the protocol about your readiness to participate in all investigative actions and give testimony, but only after consulting with the chosen defense attorney and ensuring his participation.
You must insist on your right and implement it. Consulting an independent attorney can help you look at the situation from a different angle and see other possible options for implementing your defense.
Participation in investigative actions
Primary testimony is essential for the defense. Courts often refer to it if the accused changes his position during subsequent interrogations, giving priority to primary testimony when assessing evidence. The defense attorney also uses it, emphasizing the consistency of the accused's position from the moment of his arrest until the end of the investigation.That is why the decision to give testimony must be deliberate and balanced, and there must be extremely compelling reasons for refusing previously given testimony. Otherwise, this testimony may be used in court as evidence in a criminal case.
Do you have doubts about the chosen position? Remember that Article 51 of the Constitution of the Russian Federation guarantees the right not to testify against oneself and close relatives from the moment of actual arrest. The accused also has the right to be given sufficient time and an opportunity to prepare for the defense, which he has the right to use and reflect this in the protocol (Part 3 of Article 47 of the Criminal Procedure Code of the Russian Federation).
No "a few words without protocol"
The dangers of "informal" communication with the operatives and the investigator should not be underestimated. As mentioned earlier, defense in a criminal case is not only of a formal legal nature. The accused and his defense attorney must convince the investigator, and subsequently the court, of their innocence. If the detainee presents one version of events in an oral conversation with the operatives or the investigator, and a completely different one for the record, they will make every effort to convict the person of committing a crime.The presence of a subjective view of the court and the investigator on the assessment of evidence in a criminal case is enshrined in law. Article 17 of the Criminal Procedure Code of the Russian Federation directly indicates that the investigator and the judge are free to assess evidence based on their inner conviction and the totality of evidence available in the criminal case, guided by the law and conscience.
Considering that decisions on criminal cases are made by living people, not a machine, then the defense in a criminal case must be built impeccably not only from a bureaucratic position. Forming an internal attitude towards the criminal case under investigation among all participants in the process is of colossal importance.
In addition, even despite the fact that oral communication with law enforcement officers is difficult to transform into evidence in a criminal case, the information they receive can be used against the accused with the help of other investigative and operational-search measures. At the very least, because law enforcement officers will gain an understanding of which direction to move for further investigation.
Defense in a criminal case is an extremely complex process that consists of many components. The lawyer and the accused must:
- analyze the available materials and information, the lack of which at the initial stage will complicate the development of a defense position;
- develop a defensive position in conditions of information deficit;
- to form a positive attitude in the investigator and the judge not only towards the developed defense position, but also towards the personality of the accused.
An important issue for the accused is to determine as many possible scenarios when choosing one or another defense position. And even the right not to testify must be used based on the specific conditions and circumstances that have arisen at the time of making this decision.
