Revue internationale de droit pénal
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p. 371 à 403
doi: 10.3917/ridp.721.0371
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Vol. 72 2001/1-2
“Suppression of evidence and the use of the investigative file in Russian trials : the view of a lawyer.”
Yelena Yu. LVOVA [*]
In this paper I seek to : (1) briefly outline general issues related to the
relevancy and admissibility of evidence in procedural criminal law in Russian; (2)
analyze the rights of parties and in particular of defense counsel deciding the
relevancy and admissibility of evidence in a trial by jury; (3) cite examples from
the most representative court cases.
However, at the outset I deem it appropriate to put on record that issues
related to the relevance and admissibility of evidence at trial only became topical
in Russia after the re-introduction of the democratic institution of trial by jury. For
this reason, I will dwell briefly on the history of the Russian jury and its position
and role in the court system in the Russian Federation.
Trial by jury in Russia became known in the second half of the XIXth century.
It dates back to the period of the rule of Tsar Alexander II, who in the 1850’s-60’s
succeeded in finding the way out of the crisis which was looming large upon the
country by instituting a “revolution from the top”, thus ensuring fast progress of the
country along the path of development.
The period under review can, without reservation, be described as a time
when Russia was heavily lagging behind other nations. This development gap
generated recognition of the need for radical changes in Russian society and
provoked a social awakening.
The reforms undertaken by Alexander II in the 1860’s and 70’s affected
practically all strata of society, stimulating economic and social development of
the country. Among such reforms, of importance was the court reform of 1864
which modified the whole structure of the court system and court proceedings in
Russia. Throughout its entire history, the nation did not experience such radical
changes in its court system which, for all practical purposes, resulted in setting up
of a principally new organization of the judiciary.
The jury became the cornerstone, the very kernel of the reform of penal
justice.
In defining this institution, it would be appropriate to quote the opinion of a
well-known statesman – N. V. Mouraviev, Minister of Justice of Russia in 1881-1905 who wrote as follows :
“…it is only through participation in the criminal trial on a par with
professional judges, of the social element represented by members of the
jury, that a possibility – not achievable in a different court – presents itself to
examine the act under review from the standpoint of a vivid and immediate
sense of truth and justice, that strict adherence to principles of spontaneity,
verbal interaction, publicity and equality of parties is established, that
independence and impartiality of court judgments are ensured and their
internal authority is provided, being based on the unbreakable linkage
between discharge of justice by bodies of state power and legal notions of
the populace….”
Since the well-known events of 1917, it was only in 1989 that the term “jury”
again appeared in the laws of Russia within the framework of a legal reform which
commenced on the crest of democratic changes. However, we should put it on
record that at that time the correct understanding of this institution of justice was
totally missing, it being identified by the legislator merely as an “expanded panel
of peoples’ assessors.” A long way was yet to be traversed before trial by jury
was actually incorporated in contemporary court practice. It was only four years
later – in 1993 – that the Constitution of the Russian Federation and a Resolution
of the Supreme Court of the Russian Federation made provisions for introduction
in several regions of the country of trial by jury and for a phased introduction of
this institution in the remaining political divisions of the Russian Federation.
However, even today criminal cases are not tried by jury in the entire country.
Neither in Moscow, the capital city of the Russian Federation, nor in St.
Petersburg, in the two most central cities of the nation, has trial by jury been
introduced. As of now, the right of a defendant to opt for trial by jury in the
Russian Federation is directly dependent on the court which examines the case,
proceeding from its locus standi. So, for example, if the case is heard in Moscow
Regional Court, a defendant has the right to opt for trial by jury, while if an
analogous case is heard in Moscow City Court, such person is denied this right.
At the same time, the trial by jury as the ultimate form of democratic court is
winning more and more champions among judges, prosecutors, attorneys, legal
pundits and defendants alike. Suffice it to say that if in 1994 petitions for trial by
jury were filed in respect of 20.4% of all eligible criminal cases in 1995. This share
rose to 30.9% in 1996 to 37.3%, and in 1997 it remained at the 37% mark, while
in the Ivanovo and Moscow regions such petitions were filed in 85% and 57.5% of
cases, respectively. The number of cases considered and decided on the merits
is rising annually, too. In 1994 the number was 173 cases with 241 defendants, in
1995,305 cases with 544 defendants, in 1996,336 cases with 622 defendants,
and in 1997,419 cases with 825 defendants. On the average in Russia in 1994,
juries acquitted 18.7% of defendants, while in the same period regular courts
acquitted only 1.7% of defendants. Over the few last years, the percentage share
of acquittals in trials by jury fell to about 12% while the respective index for
regular courts did not rise.
The above numbers testify to the unswerving growth of defendants’ trust in
trial by jury in criminal cases. Professional lawyers are nearly unanimous in their
opinion that this institution has opened up new opportunities for the parties in the
criminal trial, resuscitated “dead” norms of material and procedural law which
were forgotten long ago, resurrected the principle of adversariness radically,
changed approaches to relevancy and admissibility of evidence, and became the
most efficient tool in ensuring compliance with and upholding of not only
procedural, but of wider human rights and freedoms.
I
Russian criminal procedure is divided into two stages : The preliminary
investigation, carried out by the competent authorities, and the trial proceedings .
The bulk of evidence is collected at the stage of preliminary investigation and
such evidence is compiled in a dossier and is later forwarded with an indictment
to a court for resolution of the question of culpability or non-culpability of the
person charged. The court is responsible for examining the evidence collected in
the case for evaluating it and, for reaching an appropriate judgment. If needed for
a comprehensive, full and objective examination of the case, the court may
examine additional witnesses, order expert examinations and inspections of the
site and premises.
Under the Russian Code of Criminal Procedure, evidence is any factual data,
on the basis of which and in accordance with the procedures determined by law,
an inquest agency, investigator, prosecutor or court establishes the presence or
absence of a socially dangerous act, culpability of the person who has committed
such act and other circumstances relevant to a proper resolution of the case.
These data can be drawn from the sources exhaustively specified by the law :
from evidence provided by witnesses, victims, defendants, from experts’ opinions,
exhibits, protocols of investigative and court actions, as well as from other
documents. The evidence must be relevant and admissible. Factual data is
relevant and can become evidence in the case if they constitute information about
facts or items which confirm, refute or question the existence of circumstances
relevant in the case.
In practice parties often engage in heated debates about admission of
evidence. One of the underlying reasons for this is the statutory ban on disclosure
before the jury of personal information about the defendant (previous records,
references from his/her place of work, etc.) It is not uncommon that defendants
and witnesses are examined with respect to certain circumstances which are not
the subject matter of the charge and, consequently, are not relevant in the case
but are capable of casting doubts about the good character of a defendant. The
prosecution in jury trials often attempts to use such testimony both by staging
examination in respect of non-relevant circumstances and by way of disclosing
testimony and information obtained during the preliminary investigation. Thus, for
example, in the case of A. N. Chumakov and others charged with premeditated
murder which was tried in the Moscow Regional Court with my participation as a
defense attorney, the prosecutor insisted that disclosure should be made in court
of the report of the search conducted at the apartment of the defendant as a
result of which several weapons were seized. Although possession of such
weapons was not criminal, the prosecutor charged A. N. Chumakov therewith in
order to prejudice him in the eyes of the jury.
In a situation like this, the defense must react and seek to convince the court
of the inadmissibility of the evidence under scrutiny. Likewise, it should be
admitted that situations arise when the defense also attempts to introduce
evidence which at first glance is not relevant to the case.
Thus, in the case of the Roudakov brothers who were charged with an
attempt to commit premeditated murder, robbery and arson, in which I
participated as a defense attorney, it became known that criminal proceedings
were earlier initiated against one of the defendants for the murder of a certain T.
However, the case was dismissed for lack of evidence. The victim in his testimony
indicated that T. was killed not by him but by one of the Roudakov brothers who
was cohabiting with the wife of T. In a situation like this, verbal examination of the
wife of T. and other witnesses who obviously were not directly related to the case
of the Roudakovs as such was very important. This would provide an opportunity
to demonstrate to the jury the extreme bias of the victim in wanting the defendant
to be convicted .
It should be mentioned that this particular case was heard by four different
juries and two times the judgment was reversed by the Chamber of Review of the
Supreme Court of the Russian Federation, and the issue of examination of this
evidence was resolved differently each time. In the end, after four years of battles
in court, the Roudakovs were acquitted of all charges.
Of greater importance and complexity is the issue of admissibility of
evidence. As mentioned earlier, in order to ensure the authenticity of, and verify
the data obtained, the legislator has determined who, from where and by what
means evidence can be obtained so as to be admissible in court. The law gives
an exhaustive list of sources from which data relevant to the case may be
obtained, and with respect to each such source it prescribes the procedure for its
acquisition (interrogation, inspection, etc.) and recording.
The importance of these evidentiary rules is evident in light of the
constitutional provision that in the discharge of justice it shall be inadmissible to
use evidence obtained in violation of the federal law.
[1] “Evidence obtain unlawfully
shall be deemed to have no force and effect and cannot be used either as the
basis for bringing the charge or for the purpose of proving the circumstances
listed in Article 68 of the Code of Criminal Procedure (CCP).”
[2] Thus, the
cumulative rules contained, first of all, in §§ 68,69 and 70 CCP and other
provisions of the CCP establish rules and restrictions which should serve as
guidance when obtaining and presenting evidence and when the court rules on its
admissibility.
In other words, the Russian CCP not only establishes the rules for obtaining
evidence but also provides for the exclusion of any evidence obtained in violation
of the above rules, no matter how important it may be to prove the culpability of a
defendant.
To demonstrate the importance of this principle, I would like to cite one very
illustrative case.
The Rostov Regional Court twice tried – in a trial by jury – the case of
Kornilov, Nikulenko and Gerner.
Kornilov was charged with the murder of four persons, Nikulenko, with
murder of one person (in criminal complicity with Kornilov), Gerner, with covering
up the murders committed by Kornilov.
The defendants pleaded not guilty to the charge, and submitted that the
murder had been committed by other persons who were fugitives and were being
tried separately. There was practically no evidence proving participation of the
defendants in the murder of four persons other than the “voluntary confessions” of
Kornilov and Gerner. In the first trial those “voluntary confessions” were not
excluded (though the defense submitted that they should have been). In the
second trial, those “voluntary confessions” were excluded as having been
obtained wrongfully. Pursuant to the first verdict of the jury Kornilov was
sentenced to capital punishment and Nikulenko to nine years of confinement;
pursuant to the second verdict, Kornilov was sentenced to two years and seven
months of confinement (for covering up the murders committed by others), while
Nikulenko was acquitted.
Since diverse sentences in one and the same case were possible because
the issue of exclusion of inadmissible evidence was resolved differently each
time.
II
On July 16,1993 a law of the Russian Federation introduced trial by jury and
incorporated into the CCP norms of relevancy and admissibility of evidence,
defined the rights of the parties in resolving those issues and described the
procedure for their resolution. It was established that the proceedings in trial by
jury were to be conducted on the principle of adversariness. In so doing, equality
of the rights of the parties is ensured, and the court, while maintaining objectivity
and impartiality, creates for them the necessary conditions for a comprehensive
and full examination of circumstances of the case.
[3] Issues of relevancy and
admissibility of evidence were to be resolved by the parties at the time of the
preliminary hearing and thereafter. A preliminary hearing is conducted by a single
judge in camera with obligatory participation of the prosecutor, the defendant who
filed a petition for the trial by jury and his attorney. The main purpose of the
preliminary hearing is to explain to the defendant the charge brought against him,
his rights in a trial by jury and the consequences of an acquittal or conviction.
After that, the judge gives the defendant the right to confirm his choice of trial by
jury. If the defendant does not confirm his choice of trial by jury, then the judge,
after fulfilling some other procedural formalities, declares the preliminary hearing
to be closed and refers the case for trial without a jury.
After the defendant confirms his jury request, motions may be made seeking
release of the defendant from custody, remand of the case for additional
investigation, or the calling of additional witnesses, but it should be emphasized
that the main focus at the preliminary hearing stage is on admissibility of
evidence. By that time, both the defense and the prosecution, as a rule, will have
acquired fairly good knowledge of the case and are capable of pinpointing that
evidence which, in their opinion, has been obtained wrongfully and as such
should be excluded in the case. Quite often the defense presents written and
well-grounded motions which makes it possible for the judge and the prosecution
to study its arguments in depth. The judge rules on the motions after hearing the
arguments of the parties in which both the defense and the prosecution have a
chance to demonstrate their knowledge of the procedural law.
[4]
The next stage at which the parties have the right to address the admissibility
of evidence is at the trial. A motion seeking exclusion of evidence obtained
unlawfully as well as one seeking to admit certain evidence can be filed by parties
at any moment of the court proceedings, notwithstanding the fact that the judge
may have made an earlier ruling with respect thereto.
This means that even if the judge at the preliminary hearing or at trial made a
decision to exclude or admit any evidence the parties may raise the issue of
admissibility again if they marshal up new arguments and reasons in support of
their position. Further, the law is silent as to how many times such motions may
be filed, thus providing an opportunity to file them repeatedly.
In practice such a situation is rather typical. Often, the evidence which was
ruled to be inadmissible at the preliminary hearing at the request of the
prosecution, may be allowed by the judge during trial and vice versa.
By way of example, I would like to cite the case of Soukharkov and others
who were charged with banditry, several premeditated murders and extortion and
which was tried by the Moscow Regional Court with my partner, Mr. T. V. Gridnev
acting as the defense attorney. At the preliminary hearing the defense attorney
secured exclusion of the interrogation of Soukharkov as a witness because it was
obtained unlawfully. During the trial the prosecutor again applied for that evidence
to be examined and the judge refused anew. After a two day recess in the
proceedings, the prosecution reopened the issue and submitted new arguments
in support of their position. Having heard the opinions of the parties, the court
granted the motion. When the reading of Soukharkov’s testimony began, the
defense attorney sought permission to approach the bench and convinced him
that it was necessary to interrupt examination of that evidence and to re-consider
the issue of admissibility. Having heard the opinion of the attorney, the court ruled
the interrogation of Soukharkov as a witness to be inadmissible evidence and
exclude it from the trial. After that, the prosecution twice filed analogous petitions
but the ruling of the court stood unchanged. It should be mentioned that in that
case Soukharkov was pronounced not guilty by the jury of all charges.
The issue of admissibility of evidence is considered and resolved by the court
without the jury being present. This rules serves to uphold the status of the
members of the jury as fact-finders whose mandate does not include resolution of
specific legal issues. In addition, evidence cannot be presented to the jury until
the issue of its admissibility has been resolved.
In the first cases tried by jury in Russia, it was not uncommon for the
prosecution to count on the lack of attention on the part of the court and the
defense and to read procedural documents into evidence which were earlier ruled
to be inadmissible evidence. In such cases, the defense almost always files a
motion to dissolve the jury because there is reason to anticipate that their verdict
will be based, inter alia, on inadmissible evidence. However, these days judges
usually do not grant such motions and confine themselves to instructing the
members of the jury that they should not consider inadmissible evidence in
reaching their verdict.
For instance, when the Moscow Regional Court tried the case of Gochin
charged with premeditated murder with my participation as defense attorney, the
judge – despite objections of the defense – let the jury view the videotape
recording the visit of Gochin to the place of the murder and the discovery of the
corpse of the deceased. And though later upon motion of the defense this
evidence was excluded from the case proceedings as obtained unlawfully,
nothing could erase from the memory of the members of the jury what they had
seen.
III
Speaking of the rights of parties in a criminal action when the issue of
admissibility of evidence is addressed, I would like to dwell on one problem which
in my opinion is of special interest and in respect of which heated debates are
going on both among practicing lawyers in court and among experts in procedural
law in scientific publications. This problem is called by many “asymmetry of the
rules of admissibility of evidence.” The problem arose in connection with differing
stands taken by scientists with respect to the right of the defense to use evidence
obtained unlawfully.
The champions of using such evidence argue that : (1) § 69(3) CCP should
be interpreted in such a way that evidence obtained unlawfully should be
considered inadmissible only when offered by the prosecutor to prove guilt; (2)
the burden of proving the guilt of the defendant is with the prosecution. The
defense has the right both to present evidence of the innocence of the defendant
and to question evidence submitted by the prosecution. In the latter case, the
defense may use unlawfully gathered evidence which may not be used by the
prosecution; (3) a defendant cannot be held responsible for errors committed by
the investigator who has tainted exculpatory evidence; (4) in cases when
exculpatory evidence was obtained in violation of the procedural rights of the
defendant, it can be admitted at the request of the defense.
In their turn, those who oppose this school of thought consider that
inadmissible evidence can neither be used by the prosecution nor by the defense.
Further, they maintain that § 69(3) CPP should not be narrowly construed since it
contains restrictions on use of evidence obtained unlawfully not only to prove guilt
but also to prove circumstances which lessen his culpability and mitigate the
sentence.
I will now illustrate examples from court practice dealing with “asymmetry of
the rules on admissibility of evidence.” Judge of the Moscow Regional Court, N.
V. Grigoryeva, was one of the first to apply this theory.
On February 6,1995, in the case of Rakhimov, Kopytin and Tarasov, in
which she was presiding judge, the judge initiated discussion on exclusion of the
interrogation of Rakhimov as a witness and “voluntary confessions” of the
defendants (due to a violation of § 111 CPP). The defendants and their attorneys
moved that said evidence be admitted while the prosecutor requested that it be
excluded. N. V. Grigoryeva agreed with the defense saying that “proceeding from
the principle of adversariness and § 69 CPP to the effect that evidence obtained
unlawfully only cannot be used by the prosecutor, the voluntary confessions and
records of the interrogation of Rakhimov as a witness shall not be excluded from
the proceedings.”
I will cite two more examples from the practice of the Rostov Regional Court.
In one case considered by the jury in Rostov Regional Court, the defendant
Sokolov was charged with an attempt to commit premeditated murder of a certain
Seremin.
While not denying the fact of wounding Serenin with a knife, Sokolov sought
to explain his actions invoking self defense. In support of his position he
requested that the certificate of his medical examination be read out which
reflected bodily injury inflicted on his person.
However, this certificate, pursuant to the motion of the prosecutor was
excluded from the case since it was established that it was obtained unlawfully.
This violation of the law was committed by the investigator who was not
influenced either by the defendant or his attorney. Thus, the jury did not consider
the certificate of medical examination of Sokolov, and returned a verdict of “guilty”
and rejected the submission of Sokolov that he acted in self-defense.
In another case also tried by a jury in the Rostov Regional Court, the
defendant Mikhalko was charged with illegal acquisition and possession of a fire
arm – a pistol.
During the trial the defendant Mikhalko stated that the pistol which he
acquired and kept was voluntarily surrendered to police officers immediately upon
learning that a person had been killed with the weapon.
In order to verify the above statement of Kikhalko of importance was the
procedural document reflecting the use of said weapon from Mikhalko. The
seizure was noted in a search record in which Mikhalko himself was listed as a
witness to the search. Obviously this was a violation of provisions of § 135(2)
CCP which prohibits using interested persons as witnesses to a search.
Consequently, the search record (reflecting the voluntary surrender by the
defendant Mikhalko of the pistol) was excluded. In this case the investigator
committed a gross violation of the law and the prosecutor has all the necessary
reasons to move to exclude the evidence undermining his position; as a result,
the defendant, due to a gross violation of the law by the investigator, is deprived
of evidence of his innocence.
Of course, in reference to the aforementioned notion of “asymmetry,” it is not
possible to establish different sets of rules for introduction of evidence for the
defense and the prosecution. However, we firmly believe that upon motion of the
defense it should be possible to admit evidence which was obtained unlawfully by
the prosecution.
Some academics and practicing lawyers maintain that this asymmetry is
possible only with respect to inadmissible evidence obtained by investigating
agencies. If, however, the evidence in question is submitted by (obtained by) the
defense, then the issue of admissibility of such evidence should be resolved in full
conformity with the rules of admissibility of evidence without any limitation. We
would be prepared to agree with this but as of today the CPP gives an attorney
the right to submit evidence but is silent on the procedure for collecting and
recording the evidence. The absence of such procedure per se makes all
evidence obtained by the defense inadmissible. A possible exemption to this
situation exists for documents obtained by the attorney for the defense following
written requests.
This situation may be considered as yet another problem of admissibility of
evidence. Issues associated with it are resolved in a non-uniform way in the court
practice. Allow me to cite some examples.
Thus, in the case of A. N. Choumakov and others charged with premeditated
murder which was tried in the Moscow Regional Court with me and some of my
colleagues from our Law Office acting as defense attorneys, the members of the
jury had a hard time understanding from what distance one of the defendants shot
at the victim because the scene of the crime was not investigated in detail. Of
importance was the issue of natural obstructions in the line of fire – the position of
bushes and trees. In this situation my colleagues and I invited an expert who
arrived at the scene of the crime and drafted a detailed map of the scene
indicating all pertinent distances. In addition, photographs of the scene were
taken from different angles. During the court proceeding we file a motion seeking
to admit the map and the photographs and to provide the jury with a change to
examine them. An attorney for the prosecution strongly objected to this, saying
that the law does not define rules for collection of evidence by the defense, and
that it therefore should not be admitted. The court granted our motion
commenting, however, that it was admitting the photographs and the map as
“materials of the defense.” It remained unclear if the jury could examine them as
evidence.
This case lasted for about three years. Before the last court hearing which
was presided by another judge, we, acting on our own, invited an independent
ballistic expert. The expert visited the scene of the crime, conducted an
examination, made photographs, staged experiments using a dummy, discovered
bullet marks which had not been seen before and drafted a 200 page expert
opinion of extremely high professional quality proving beyond any doubt that our
defendants were not guilty. However, the judge refused to admit such expert
opinion and prevented the jury from examining it, saying that the law does not
envisage a procedure for collection and recording of evidence by the defense.
Our defendants were pronounced guilty.
I believe there is no need to comment upon the above examples.
APPENDIX
To Presiding Judge in the criminal case of A. A. Dachko, D. S. Malyuk, and
A. N. Choumakov accused of having committed crimes provided for in clauses
“a,” “a,” “H” of Article 102 and Section 1 of § 218 of the Criminal Code of the
Russian Federation.
From Attorney-at-law of the Moscow City Bar E. Yu. Lvova – in defense of A.
A. Dachko;
From Attorney-at-law of the Moscow City Bar D. V. Kharitonov – in defense
of D. S. Malyuk;
From Attorney-at-law of the Moscow City Bar T. V. Gridnev – in defense of A.
N. Choumakov
MOTION
Per § 432 of the CCP.
In the opinion of the defense of the accused the following evidence should be
excluded as inadmissible from the trial of the criminal case in question in the jury
court.
1. All evidence given by A. N. Choumkov at the stage of preliminary investigation, in particular :
A. The record of the interrogation of A. N. Choumakov as a suspect dated
October 8,1993 (pages 103-104,107, Volume 1) on the following grounds :
In accordance with § 52 of the CCP a person shall be recognized as a
suspect if detained under § 122 of CCP upon suspicion of having committed a
crime or if subjected to a preventive detention until filing of an accusatory
pleading. In all other instances the procedural status of a person is that of a
witness. In the instant case A. N. Choumakov was detained as a suspect at 9 :30
p.m. on October 8,1993 (see page 102, Volume 1). It is from this moment on that
A. N. Choumakov became a suspect and he became subject to all the rights and
obligations provided for § 52 CCP. However, it is evident from the record that A.
N. Choumakov had been interrogated twice in the capacity of a suspect from 6 :40
p.m. until 7 :20 p.m. and from 8 :00 p.m. until 8 :45 p.m. well before he was
detained in this capacity under § 122 CCP (see pages 50,51,53 of Volume 1)
which constitutes a violation of § 52 CCP.
It is not obvious from the record that A. N. Choumakov was advised what
crime he was suspected of having committed thus depriving him of the right to
exercise his defense in a proper manner.
During the first interrogation of A. N. Choumakov as a suspect he pointed
out : “…I have been advised by the investigator that I am entitled to defense
counsel from the time of detention. Due to this I need an attorney and I will give
no evidence. Written with my own hand…” (pages 103 through 106 of Volume 1).
However, the investigative authorities ignored A. N. Choumakov’s statement and
carried on with the interrogation thereby grossly violating the suspect’s right to
defense counsel.
As at that time of interrogation of A. N. Choumakov as a suspect the
Constitution, as amended by the Law of the RF of April 21,1992, was in effect in
the Russian Federation. In accordance with Article 51 of the Constitution which is
directly applicable, nobody is obligated to testify against himself, his spouse or
other close relatives. However, the investigative authorities failed to explain this
Constitutional right to A. N. Choumakov before the commencement of the
interrogation procedure.
B. The record of the interrogation of A. N. Choumakov as a suspect dated
October 9,1993 (pages 130 through 132, Volume 1) on the following grounds :
In the course of the said interrogation A. N. Choumakov waived his right to
defense counsel in the case but in accordance with the CCP and the guidelines
explained by the Plenum of the Supreme Court of the RF, the investigative
authorities shall, irrespective of a possible waiver by a suspect or an accused of
their rights to defense, be obligated before and/or during the interrogation to
ensure the actual rights of said persons to defense counsel. At the same time the
case is devoid of any order from a Bar Office instructing any attorney to assume
the defense of A. N. Choumakov which suggests a flagrant breach of § 52(2)
CCP and of Article 67-1 of the then applicable Constitution according to which
every person was guaranteed defense of his rights by a qualified attorney.
This record was excluded as having been unlawfully obtained and thus
having no legal force and effect, by ruling of the judge dated October 9,1995
during the first hearing in the case.
C. The record of the confrontation between A. N. Choumakov and A. A. Dachko
dated October 11,1993 (pages 138,139, Volume 1) and the record of the
confrontation between A. N. Choumakov and D. S. Malyuk dated October 11,
1993 (pages 136,137, Volume 1) on the following grounds :
The record of the above-mentioned investigative procedures contains a
deletion of the following printed text : “In accordance with § 163(1) CCP was
warned of the responsibility under § 182 CCP for giving false evidence or failing
to give evidence as well as under § 181 of the said Code for deliberately giving
false evidence.” On top of the crossed-out passage there is the following entry
made in the handwriting of the investigator :
“A. N. Choumakov, D. S. Malyuk (in the other record – A. N. Choumakov and
A. A. Dachko, accordingly) do not object to participating in the confrontation
without assistance of attorneys.” According to the defense the crossing-out of the
printed text and the aforesaid handwritten entry of the investigator came to pass
after the confrontation had been held and the record had been signed by its
participants. The records completed in this fashion do not have any legal force
and effect because of the violation of § 102(a) CPP that took place during the
completion of the records. In accordance with the said rule all amendments,
additions and corrections should have been stipulated and attested by the
signatures of the parties to the investigative procedure.
During the conduct of the above confrontations neither D. S. Malyuk, A. N.
Choumakov, or A. A. Dachko were assisted by attorneys having allegedly refused
their assistance. However, even in this instance the investigating authorities
should have ensured in real terms the rights of the above-mentioned persons to
defense counsel prior to or during the interrogation in accordance with the CCP
and the Guiding Explanations of the Plenum of the Supreme Court of the RF. At
the same time the records of the case are devoid of any order from a Bar Office
according to which any lawyers were appointed to provide defense for A. N.
Choumakov, D. S. Malyuk and A. A. Dachko thereby constituting a gross violation
of § 52(2) CCP and Article 67-1 of the then applicable Constitution guaranteeing
to every person the defense of rights by a qualified attorney
.
The record of the confrontation between A. N. Choumakov and D. S. Malyuk
was excluded during the first trial of this criminal case on October 10,1995 by the
ruling of the judge as having been unlawfully obtained, thus enjoying no legal
force and effect.
D. The record of the interrogation of the accused A. N. Choumakov dated October
18,1993 (pages 172 through 174, Volume 1) on the following grounds :
The conduct of the above-mentioned investigative procedure is envisaged in
§§ 178,179 CCP. However, it is not clear what procedure exactly was carried out
by the investigator because the records per se are entitled “Onsite verification of
testimony,” followed by an entry, “Record of Inspection of the Scene of the crime
with the Defendant in Attendance.” Neither of the above titles was crossed out
thus giving all the grounds to regard both of them as valid. However, in
accordance with the same record the investigator conducting the said procedures
was going by § 183 CCP governing the conduct of an investigative experiment.
The defense is of the opinion that this confusion as to the legislative rules
governing the investigative procedure misled A. N. Choumakov as to what kind of
procedure was actually carried out with his participation. Each of the above
procedures is provided for in different articles and is carried out under different
rules.
In the light of the aforesaid the defense intends to suppress the evidence on
grounds of violation of the CCP in compiling procedural documents. “In several
cases judges made decisions to exclude from the evidence the records of onsite
verification of testimony due to the fact that this procedure is not envisaged by the
criminal procedure law (see “Zakonnost,” Issue 1,1995, p. 22).
Also, this issue was accorded broad coverage in Ruling #8 dated October 31,
1995 of the Plenum of the Supreme Court of the RF, pursuant to clause 16 of
which a piece of evidence may not be admitted if it was obtained through a
procedure not provided for in the CCP.
In participating in the above investigative procedure A. N. Choumakov did not
have the service of an attorney which constituted a most egregious breach of the
accused’s right to defense counsel.
There is no doubt whatever that both words and actions may serve as a
testimonial. Performing any action (showing on the site where a car was located,
the whereabouts of the victim etc.) which is recorded procedurally by the
investigators and furnishing explanations in the majority of instances, the accused
gives testimony and thus should be advised of his right to refuse to perform such
actions, i.e. not to be a witness against himself.
In accordance with § 141(u) CCP a record of an investigative procedure shall
be signed by all its participants. In violation of the provisions of this Article the
record of the onsite verification of testimony of A. N. Choumakov was not signed
by A. N. Choumakov and it contains no reference to a refusal to sign.
This record was excluded during the first hearing of the case by the ruling of
the judge dated April 6,1995 as evidence unlawfully obtained and thus enjoying
no legal force and effect.
F. The records of the interrogations of A. N. Choumakov as an accused dated
April 21,1994 (pages 14 through 16, Volume 2), December 23,1994 (pages 78
through 83, Volume 3), and December 25,1995 (pages 120,121, Volume 6) on
the following grounds :
In accordance with Article 51 of the Constitution of the RF adopted on
December 12,1993 nobody is obligated to be a witness against himself, his
spouse or close relatives as determined by Federal law.
Clause 18 of Ruling #8 dated October 31,1995 of the Plenum of the
Supreme Court of the RF directs that “…if a suspect or an accused during a
preliminary investigation or inquest was not given an explanation of the above
Constitutional provision, the evidence of such persons must be recognized by the
court as unlawfully obtained and thus may not be proof of the guilt of the
accused…”
During the conduct of all of the interrogations of A. N. Choumakov
enumerated in Section “F” his right not to be a witness against himself was not
explained to him which is indicative of the lack of any legal force and effect in the
above evidence.
2. All the evidence of D. S. Malyuk given at the stage of the preliminary investigation, viz.
A. The record of the interrogation of D. S. Malyuk as a suspect dated October 8,
1993 (pages 95,96, Volume 1) on the following grounds :
In violation of § 52 CCP D. S. Malyuk was interrogated as a suspect prior to
his detention pursuant to § 122 of the above Code thereby actually being a
witness in the case.
It is not apparent from the texts of the records of interrogation that D. S.
Malyuk was advised what crime he was suspected of having committed thus
depriving him of the right to exercise his defense in a proper manner.
In the course of the said interrogation D. S. Malyuk waived his right to
defense counsel in the case, but in accordance with the CPP and the guidelines
explained by the Plenum of the Supreme Court of the RF the investigative
authorities shall irrespective of a possible waiver by a suspect or an accused of
their rights to defense counsel, be obligated to ensure the exercise of such right
before or during the interrogation. At the same time the case files are devoid of
any order from a Bar Office instructing any attorney to assume the defense of D.
S. Malyuk which suggests a flagrant breach of § 52(2) CPP and of Article 67-1 of
the then applicable Constitution according to which every person is guaranteed
defense of his rights by a qualified attorney.
At the time of interrogation of D. S. Malyuk as a suspect the Constitution, as
amended by the Law of the RF of April 21,1992, was effective in the Russian
Federation. In accordance with Article 67 of said Constitution which is directly
applicable nobody is obligated to testify against himself, his spouse or his close
relatives. However, the investigative authorities failed to explain this Constitutional
right to D. S. Malyuk before the commencement of the questioning procedure.
B. The record of the confrontation between A. N. Choumakov and D. S. Malyuk
dated October 11,1993 (pages 136,137, Volume 1) on the following grounds :
On this issue see paragraph “B” of Section 1 hereof.
The record of the confrontation between A. N. Choumakov and D. S. Malyuk
was excluded during the first hearing of this criminal case by ruling of the judge
dated October 10,1995 as evidence unlawfully obtained thus enjoying no legal
force and effect.
C. The record of the interrogation of the accused dated October 18,1993 (pages
147,148, Volume 1) on the following grounds :
In accordance with § 151(5) CCP, if a record of an accused is written on
several pages the accused shall sign every page separately. However, the first
two pages of the three page record in question were not signed by D. S. Malyuk.
Only the third page was signed at the very end of the record. In accordance with
clause 16 of Ruling #8 dated October 31,1995 of the Plenum of the Supreme
Court of the RF evidence must be recognized as wrongfully obtained if, among
other things, the rules for recording such evidence established by CPP were
violated.
D. Record of the inspection of the scene of the crime in the case of D. S. Malyuk
on October 18,1993 (pages 152,153, Volume 1) on the following grounds :
In participating in the above investigative procedure D. S. Malyuk refused
assistance of the attorney who had been made available to at the time. But this
waiver took place at the end of the previous investigative procedure, i.e. during
the interrogation of D. S. Malyuk as an accused. Before the inspection of the
scene D. S. Malyuk was not asked whether he insisted on participating in the
investigative procedure without the assistance of the attorney. At the same time
the video recording of the inspection of the scene reveals that he had refused
twice to answer the questions of the investigator and did not have any chance to
seek advice from his attorney as to how to behave in the prevailing situation.
Besides, D. S. Malyuk was charged with having committed a felony provided for
in § 102 CC punishable by law with a death penalty and requiring mandatory
assistance of defense counsel pursuant to § 49(5)(1) CCP. § 50 CCP provides
that waiver of the right to the mandatory assistance of defense counsel in a case
where a person is charged with having committed a crime for which capital
punishment is envisaged by law shall not be binding upon an investigator. This
rule coupled with § 49(5) CCP does not permit the investigator to obtain a waiver
from the accused of the right to defense counsel in the instances covered by the
aforesaid articles, still less where such a defense counsel has been made
available already.
The records of the interrogations of D. S. Malyuk as an accused dated
November 24,1994 (pages 175 through 180, Volume 2), December 23,1994
(pages 50 through 55, Volume 3), and December 21,1995 (pages 114 through
116, Volume 6) on the following grounds :
See paragraph “F” of Section 1 hereof on this issue.
3. All evidence given by A. A. Dachko at the preliminary inquiry stage, viz. :
A. The record of the interrogation of A. A. Dachko as a suspect dated October 8,
1993 (pages 100,101, Volume 1) on the following grounds :
In accordance with § 52 CPP a person shall be recognized a suspect if
detained under § 122 CPP as being suspected of having committed a crime or if
subject to a preventive detention until being charged. In other instances the
procedural status of a person is that of a witness. In the case in point A. A.
Dachko was detained as a suspect at 9 :00 p.m. on October 8,1993 (see page 98,
Volume 1). From this moment on A. A. Dachko was a suspect in accordance with
the said rule and he became subject to all the rights and obligations provided for
in § 52 CCP. However, it is apparent from the case files that A. A. Dachko had
been interrogated as a suspect on October 8,1993 from 2 :50 p.m. until 8 :45 p.m.
(see pages 100 and 101 of Volume 1) well before he was detained in this capacity
under Article 122 which constitutes a violation of § 52 CPP since A. A. Dachko
held quite a different procedural status at the time of said interrogations.
It is not obvious from the records that A. A. Dachko was advised of what
crime he was suspected of having committed, thus depriving him of the right to
exercise his defense in a proper manner.
In the course of this interrogation session A. A. Dachko waived his right to
defense counsel in the case but in accordance with the CPP and the guidelines
explained by the Plenum of the Supreme Court of the RF the investigative
authorities shall irrespective of a possible waiver by a suspect or an accused of
their rights to defense counsel be obligated before or during the interrogation to
ensure the actual rights of said persons to defense counsel. At the same time the
case is devoid of any order from a Bar Office instructing any attorney to assume
the defense of A. A. Dachko which suggests a flagrant breach of § 52(2) CCP and
of Article 67-1 of the then applicable Constitution according to which every person
is guaranteed defense of his rights by a qualified attorney.
At the time of interrogation of A. A. Dachko as a suspect the Constitution as
amended by the Law of the RF of April 21,1992 was effective in the Russian
Federation. In accordance with Article 67 of said Constitution which is directly
applicable nobody is obligated to testify against himself, his spouse or his close
relatives. However, investigative authorities failed to explain this constitutional
right to A. A. Dachko before the commencement of the interrogation procedure.
B. Record of the confrontation between A. A. Dachko and A. N. Choumakov,
dated October 11,1993 (pages 138 and 139, Volume 1) on the following grounds :
See paragraph “C” of Section 1 hereof on this issue.
C. Record of the inspection of the scene of the crime in the case of A. A. Dachko,
dated October 18,1993 (pages 160 through 162, Volume 1) on the following
grounds :
The conduct of the above-mentioned investigative procedure is prescribed in
§§ 178,179 CCP. However, it is not clear what procedure exactly was carried out
by the investigator because the records per se are titled “Onsite Verification of
Testimony” followed by an entry, “Record of Inspection of the Scene of the Crime
with the Defendant in Attendance.” Neither of the above titles was crossed out
thus giving all reasons to regard both of them as valid. However, in accordance
with the same record the investigator conducting said procedures was going by §
183 CCP governing the conduct of an investigative experiment. The defense is of
the opinion that this confusion governing the investigative procedure misled A. A.
Dachko as to what kind of procedure was actually carried out with his
participation. Each of the above procedures is provided for in different articles and
is carried out under different rules.
There is doubt regarding what procedural status applied to A. A. Dachko, i.e.
accused or suspect as he participated in the above investigative procedure.
Specifically, A. A. Dachko’s signature as a suspect is affixed at the end of the
Record (page 162-6, Volume) while it is mentioned at the beginning of the Record
(page 160, Volume 1) that he acts as an accused in the case. The records
contain no mention of the time of beginning and end of the investigative
procedure, nor is there any evidence of any review of the video recording. It is not
clear when and under what circumstances the evidence of the defendants was
recorded which is a breach of § 141(2) CCP.
D. The records of the interrogations of A. A. Dachko as an accused dated
November 24,1994 (pages 125 through 128, Volume 2), December 29,1994
(pages 120 through 124, Volume 3), and December 21,1995 (pages 117 through
119, Volume 6) on the following grounds :
On this issue see paragraph “F” of Section 1 hereof.
4. The records of the interrogations as witnesses of the following law enforcement :
Investigator S. B. Kiriyenkov, dated December 15,1995 (pages 37 through
39, Volume 6); N. L. Parfenov, dated October 27,1995 (page 42 and 43, Volume
6) dated November 1,1995 (page 44, Volume 6); L. M. Dementyev, dated
December 1,1995 (page 65, Volume 6) on the following grounds :
All of the above witnesses were interrogated as part of the additional
investigation in connection with discharge of their duties rather than relative to the
circumstances of the crime allegedly committed by the accused. Thus, S. B.
Kiriyenko was interrogated on the actual discrepancy between the data resulting
from his record of inspection of the scene of the crime and the actual data
established two years after the crime as well on the discovery of a bullet on the
balcony of the house which was not recorded in the report of the crime scene
inspection. N. L. Parfenov was interrogated on the actual loss of the video film
recording of the inspection of the crime scene in relation to A. A. Dyachko and D.
S. Malyuk as well as on the actual absence of sound in the said recordings. L. M.
Dementyev was interrogated regarding the fact that he had received a bullet from
Gubkin’s dead body from an expert.
In all those interrogation sessions constituted negligent discharge of the
officer’s duties. These witnesses should have been therefore advised of the right
not to witness against themselves provided for in Article 51 of the Constitution.
5. The records of the interrogation of N. E. Dachko (pages 21 through 28, Volume 2), N. V. Ulitina (pages 112 through 119, Volume 2), Yu. V. Gudnova (pages 182 through 186, Volume 2) as witnesses on the following grounds :
In carrying out the above investigative procedures the witnesses were
furnished with photographs and asked whether any of the persons seen on the
photographs were known to any of them for purposes of identification within the
framework of the interrogation session. In the view of the defense and in
accordance with § 158 CCP such actions go beyond the framework of
identification of a person by photograph which must be recorded separately given
the requirements of § 165 CCP and the identification procedure itself should be
carried out in the presence of civilian witnesses. The so-called appendices to the
records of the interrogations contain a space for fixing participation of civilian
witnesses, relevant data on them and their signatures, but no civilian witnesses
actually took part in the identification and the investigator did not follow the
provisions of § 165 CCP.
These records were excluded during the first hearing of the case by ruling of
the judge dated April 6,1995 as evidence unlawfully obtained thus enjoying no
legal force and effect.
6. The records of interrogation of witnesses G. A. Malyuk (pages 105,129, Volume 1) and N. E. Dachko (pages 127,128, Volume 1) on the following grounds :
As at the time of carrying out the above interrogation sessions involving N. E.
Dachko, wife of A. A. Dachko, and G. A. Malyuk, mother of D. S. Malyuk in the
capacity of witnesses, the Constitution as amended by the Law of the RF of April
21,1992 was effective in the Russian Federation. In accordance with Article 67 of
said Constitution which is directly applicable nobody is obligated to testify against
himself, his spouse or close relatives. However, the investigative authorities failed
to explain this Constitutional right to N. E. Dyachko and G. E. Malyuk before the
commencement of the questioning procedure.
These records were excluded during the first hearing of the case by ruling of
the judge dated April 6,1995 as evidence unlawfully obtained thus enjoying no
legal force and effect.
7. Explanations of A. V. Zvezdov dated October 8,1993 (page 69, Volume 1), O. N. Blinov dated October 8,1993 (page 70, Volume 1), A. K. Gumilevskiy dated October 8,1993 (page 71, Volume 1), G. A. Pankrushin dated October 8,1993 (page 72, Volume 1), V. A. Volosnov (page 57, Volume 2) on the following grounds :
§ 69(2) CCP does not provide for establishing factual data (proof) by way of
taking explanations due to which the explanations per se must be recognized as
having no legal force and effect and must be excluded from being considered in
the case since they were obtained through procedures not included in the
procedural rules directly referred to in clause 16 of Ruling #8 dated October 31,
1995 of the Plenum of the RF Supreme Court.
8. The records of search of the apartments of D. S. Malyuk (page 109, Volume 1), A. A. Dachko (page 113, Volume 1), A. N. Choumakov (page 122, Volume 1); the record of inspection of clothing of D. S. Malyuk (page 135, Volume 1), the record of personal frisking of A. A. Dachko (page 99, Volume 1) on the following grounds :
In accordance with the order initiating the criminal action (page 60, Volume
1) the latter was commenced on October 8,1993, with an inquiry team being
formed for the purpose of investigation comprising investigators Kholmanov,
Kiriyenkov and Assistant Prosecutor of the town of Podolsk, Meskhiya. However,
all of the above enumerated investigative procedures were carried out in each
specific instance by the police officers A. P. Yashchenko, V. V. Baidulov, C. V.
Antipov, V. A. Kisilev, A. V. Kalashnikov, and N. I. Parfenov who were not part of
the investigating team and therefore had no powers to conduct investigative
procedures. As was pointed out above § 127(4) CCP provides for a possibility of
carrying out investigative and search procedures by police operations organs on
written instruction or direction from an investigator. However, such instructions or
directions are lacking in the case files. At the same time Ruling #8 dated October
31,1995 of the Plenum of the RF Supreme Court provides that evidence obtained
by improper persons must be classified as evidence obtained through violation of
the law.
Orders for searches to be conducted in the apartments of A. A. Dachko, D.
S. Malyuk, A. N. Choumakov are devoid of prosecutor warrants for the conduct of
those investigative procedures.
The record of search carried out in the apartment of D. S. Malyuk was
recognized as having no legal force and effect and excluded at the first hearing
through Ruling of the judge dated October 28,1995.
The record of search carried out in the apartment of A. N. Choumakov was
recognized as having no legal force and effect and excluded at the first hearing
through the Ruling of the judge dated April 6,1995.
9. Due to the aforesaid (clause 8 hereof) the defense deems as inadmissible all the exhibits that were obtained through the conduct of searches in the apartments of the defendants, through inspection of clothing of D. S. Malyuk and personal frisking of A. A. Dachko, namely :
two powers of attorney in the name of D. S. Malyuk for a car, VAZ-2018,
license plate II 97-84 MH (page 109, Volume 1);
a power of attorney in the name of A. A. Dachko from Zvezdin for a Moskvich
car (page 113, Volume 1);
a pen-shaped gun of D. S. Malyuk (page 109, Volume 1);
4 cartridge-cases from automatic cartridges, 5.45 caliber, confiscated from A.
A. Dachko (page 99, Volume 1);
2 stilettos of D. S. Malyuk (page 109, Volume 1);
a stiletto of A. A. Dachko (page 113, Volume 1);
a sports bow of A. N. Choumakov (page 122, Volume 1);
two optical sighting devices of A. N. Choumakov (page 122, Volume1).
10. The following exhibits : two cartridge-cases confiscated during the search of the car of D. S. Malyuk (page 63, Volume 1); 4 bullets (pages 61, 62, Volume 1) seized at the scene of the crime; the clothing of A. N. Choumakov taken from him as a result of confiscation (page 141, Volume 1) on the following grounds :
In accordance with § 84(1) CCP any exhibits must be described in detail in
the records of inspection of evidence that are executed in the presence of civil
witnesses. If it is feasible, such evidence must be photographed and then
attached to the criminal case files through a special order. None of the exhibits
enumerated above were inspected with the participation of civil witnesses in
accordance with § 84 CCP. At the same time this investigative procedure is of
special importance because it records general and specific features and
peculiarities of things, objects, documents, etc. serving as material evidence as
certified by civil witnesses and, if necessary, by a specialist invited for inspection
purposes. It is the records of inspection of exhibits that allow all the parties to a
proceeding to make a judgement that it is the pertinent exhibits, rather than some
similar one, that apply in the case, were presented for research to an expert,
devoted to the state were destroyed, returned to an aggrieved party, etc. It is
possible to illustrate this by referring to a specific example from the case files.
According to the record of personal frisking of A. A. Dachko (page 99, Volume 1)
four cartridge-cases were confiscated from him belonging, as is indicated in the
record, to a Kalashnikov gun, 5.45 caliber, bearing the following marks : on one
cartridge case – “3,”, “89;” “3,” “81;” on two cartridge cases – “17,” “82”…,” No
mention was made in the record regarding any markings on the cartridge cases
seized from the car of D. S. Malyuk. Six cartridge cases, all of which were
photographed in a detailed snapshot were presented for examination by the
ballistics expert (page 206, Volume 1). Due to the absence of a record of
examination of the cartridge cases the defense has serious reason to presume
that the expert was not given for examination the cartridge cases that had been
seized from D. S. Malyuk’s car. These reasons are reinforced by another
unprecedented fact that the above mentioned photograph of the cartridge cases
lacks the cartridge case marked “3,” “89” which was confiscated from A. A.
Dachko in accordance with the record of personal frisking.
11. The following exhibits : the car of D. S. Malyuk (VAZ-2108, license plate II 97-84 MH (page 66, Volume 1) on the following grounds :
In accordance with the CCP and the order for collection of evidence none of
the latter exhibits can appear from nowhere. They can only be discovered and
seized through the conduct of investigative procedures provided for by law,
namely, a search, a confiscation, an inspection (if an inspection record indicates
that given exhibits shall be collected). All of these investigative procedures (due to
their significance and a likely later need for confirmation) are to be carried out with
the participation of civil witnesses. The car belonging to D. S. Malyuk emerged in
the case from nowhere. The case contains no procedural documents pursuant to
which the car might have been properly seized thus suggesting that this piece of
evidence is null and void. This also raises reasonable doubts that the said car is
at all pertinent in the case and that it was really seized from D. S. Malyuk.
12. The exhibit in the form of a bullet from the dead body of Gubkin (page 123, Volume 6) on the following grounds :
In accordance with the CCP and the order for collection of evidence none of
the evidence can emerge from nowhere. It can only be discovered and seized
through the conduct of investigative procedures provided for by law, namely, a
search, a confiscation, an inspection (if an inspection record indicates that given
evidence shall be collected). All of these investigative procedures due to their
significance and a possible later need for confirmation are to be carried out in the
presence of civil witnesses.
The Gubkin dead body bullet was not properly collected. It was obtained from
expert Rozin by I. M. Dementyev, the officer of the 1st Police Department of
Podolsk City Police Administration (page 65, Volume 6) on direction from his
superiors. In accordance with the case records, specifically, due to the absence of
any separate instruction the said officer was not authorized to perform any of the
investigative procedures pursuant to § 127(4) CCP. The said bullet was handed
by him to an investigator of the Moscow Region Prosecutor’s Office, but he did
not know which investigator. The criminal case charging A. N. Choumakov, A. A.
Dachko and D. S. Malyuk was accepted for investigation by the Moscow Region
Prosecutor’s Office on February 4,1994 (page 4, Volume 1), i.e. four months after
the dead body of Gubkin had been subjected to expert examination. There are no
firm grounds to assert that the bullet is the pertinent one. The case lacks any
abstract from the mortuary register on the release of the bullet to I. M.
Dementyev, let alone data on what specific bullet was released. It is curious to
note the fact that according to the record of interrogation of I. M. Dementyev as a
witness (page 65-6, Volume 6), conducted two years after the examination had
been completed and the case was submitted for additional investigation, I. M.
Dementyev received, along with the bullet, blood and bile-saturated tampons,
washouts from hands, hair samples from the dead body of Gubkin that he also
handed to an investigator from the Moscow Region Prosecutor’s Office. However,
these objects, unlike the bullet, are not available to date and their destiny is
unknown according to the case records. The inspection of the bullet in the
presence of civil witnesses was recorded two years and two months after the
criminal action was initiated.
The bullet from the dead body of Gubkin, was excluded during the first trial
by the ruling of the judge dated October 9,1995 as having no legal force and
effect because of having been obtained in violation of the CCP.
13. Forensic medical examination report relating to the dead body of V. L. Gubkin (pages 81 through 85, Volume 1) on the following grounds :
The case files lack any authentic order of the investigator authorizing the
above examination. Page 80 of Volume 1 constitutes a copy of the said order.
This circumstance gives the defense grounds to doubt compliance with the proper
procedure for ordering an examination. In accordance with the requirements of §§
184(1), 187(1) CCP as well as the requirements of relevant regulations on filing
procedures to be adhered to within the Prosecutor’s Offices, an order authorizing
an examination must be issued in triplicate, one of the originals being
incorporated in the case files, the second one being sent to an examining
organization or an individual examiner, with the third original being kept in custody
by the supervising prosecutor. There is no doubt that by transfer of a criminal
case for preliminary investigation to another investigator or another organ the
effective investigator must present all the pertinent case records and files. The
order authorizing conduct of an examination is not an exception to this rule.
However, it follows from the inquiry of investigator Kazarova submitted to the
Podolsk City Prosecutor’s Office on September 8,1994 (pages 77 through 79,
Volume 1) that almost a year after the initiation of the criminal case investigation,
the case records contained no relevant order and no examiner’s report. Thus, she
repeatedly insisted “… to expedite the production of an original Forensic Medical
Examination Report or to obtain its duplicate and to send her “a copy of the order
to be incorporated in the case…;”
In accordance with § 184(1) CCP an investigator inquiring into the case is
alone authorized to order an examination following which a relevant order is
issued. Authorization of an examination by any other person is illegal and a report
of an expert made pursuant thereto has no legal force and effect. Taking into
account all of the above circumstances and considering the copy of the order
authorizing the examination, the defense comes to a conclusion that said order
had been issued by an improper person, namely by V. A. Martinyuk, the
operations officer on duty of the 1st Police Department of Podolsk City Police
Administration. In accordance with the order initiating criminal investigation (page
60, Volume 1) it was commenced on October 8,1993 and a team was formed for
purposes of investigation comprising investigators Kholmanov, Kiriyenkov and
Meskhiya, Assistant Prosecutor of Podolsk City. The first investigative procedure,
inspection of the crime scene took place on October 8,1993 at 10 :30 a.m., that is,
three and a half hours after the murder had been committed. Apart from the
above named § 184 CCP, § 79 of the same Code provides for mandatory conduct
of an examination to establish the causes of death and the nature of bodily
injuries. In violation of all of the above rules the order authorizing the examination
was issued by V. A. Martinyuk who was not a member of the team. Even if we
admit that he acted as a representative of the organ of pre-investigative inquest,
i.e., police, authorization of an examination in the cases requiring such mandatory
pre-investigative inquest was beyond his competence according to § 119(1) CCP.
He could not have acted on instruction or direction of the investigator, either,
because in this event it must be in writing as required by § 127(4) CCP which is
lacking in the case files. § 5 of the same Article envisages that only orders of an
investigator issued in accordance with the law and relating to the criminal cases
within his powers shall be binding for compliance.
The forensic medical examination report itself relating to the dead body of V.
L. Gubkin was completed with the most gross violations of § 191 CCP requiring
that the opinion of an expert shall “… indicate by whom (surname, first name,
patronymic, specialty, scientific degree and title, position held) the examination
was completed.” In violation of this Article the report under consideration contains
no such data, except for the surname.
There is doubt regarding the very fact of completion of the examination by
the person referred to in the report because the box “forensic medical expert(s)”
contains an erasure of the original surname of the expert.
14. In connection with the aforesaid in Sections 9,10 and 12 thereof the following examination reports are to be excluded :
- ballistic examination of the bullets and cartridges (pages 199 through 203, Volume 1);
- criminological examination of the clothing of A. N. Choumakov (pages 204, 205, Volume 1);
- ballistic examination of the pen (pages 239 through 241 and 242 through 246, Volume 1);
- ballistic examination dated January 31,1995, #1150-13-7 attached to the case during the first hearing on the case held on October 9,1995;
- ballistic examination of bullets and cartridges (pages 69 through 71, Volume 6).
15. Phonoscopic examination (pages 48 through 51, Volume 6) and criminological examination of the clothing of Gubkin (pages 54 through 60, Volume 6) on the following grounds :
In accordance with § 184(3) CCP an investigator is obligated to give an
accused notice of the order authorizing an examination. In getting notice, the
accused is entitled in accordance with § 185 CCP to put additional questions to
an examiner, to challenge the participation of a specific examiner or a group of
examiners, request to appoint certain examiners and even to take part in the
conduct of the examination proper with permission of the investigator. A. N.
Choumakov, A. A. Dachko and D. S. Malyuk were given notice of the orders
authorizing examinations simultaneously with the completed reports thus being
deprived of the rights provided for by § 185 CCP (pages 103,105,107, Volume 6)
which was indicated by them in the relevant records.
Based on the aforesaid and pursuant to Section 5 of Article 65, Articles 67
and 67-1 of the RF Constitution dated April 21,1992 as well as pursuant to
Section 2 of Article 50, Section 1 of Article 51 of the RF Constitution dated
December 12,1993, §§ 69(3), 432 CCP.
REQUEST
To exclude from the trials in this criminal case all of the above mentioned
evidence obtained wrongfully and thus having no legal force and effect.
Attorney E. Yu. Lvova Attorney
T. V. Gridnev March 11,1997
Case #2-141-40/95
DECISION
April 6,1995
Judge of the Moscow Regional Court L. M. Brykalova,
With
Public Prosecutor A. G. Zerkova;
Defense Attorneys : T. V. Gridnev, A. P. Lunin, and E. Yu. Lvova;
Defendants : Alexei Nikolaevich Choumakov, Dmitry Sergeyevich Malyuk,
Anatolyevich Dyachko;
Victim : Irina Nickolaevna Gubkina
Secretary : L. V. Shirokova,
In attendance,
Having conducted a preliminary hearing in camera of the criminal case
brought against :
Alexei Nikolaevich CHOUMAKOV, born on May 25,1964 in the town of
Scherbinka, Moscow Region; Russian national; secondary professional school
graduate; reservist; married; has one dependent child born in 1988; works for
TOO Edelveis as stone cutter; resides at the following address : 14-60
Tipografskaya Ulitsa, Scherbinka, Moscow Region; has no prior record;
Dmitry Seregeyevich MALYUK, born on April 27,1973 in Moscow; Russian
national; secondary professional school graduate; reservist; single; works for
TOO Tairil as a courier; resides at the following address : 10-2-337 Klyuchevaya
Ulitsa, Moscow; has no prior record;
Anatoly Anatolyevich DYACHKO, born on June 30,1961 in Moscow,
Russian national; secondary professional school graduate; reservist; married; has
one dependent child born in 1980; works for TOO Sovremennik as a driver;
resides at the following address : Flat 29,82 Prospect Yunykh Lenintsev, Moscow
Region, Podolsk; has no prior record;
Charged with committing crimes provided in Article 102 (“a,” “a,” “M”), Article
218, Part 1 of Criminal Code.
Established the following :
The defendants A. N. Choumakov, D. S. Malyuk, and A. A. Dyachko were
charged with premeditated murder of V. L. Gubkin committed with aggravating
circumstances : for personal gain; by method endangering many human lives; as a
group of persons acting in concert, on October 6,1993 in Podolsk, Moscow
Region; with illegal acquisition and carrying of fire-arms; in addition, Malyuk was
charged with illegal possession of fire-arms.
The preliminary hearing of the case was held on motion filed by the
defendants A. A. Dyachko (Case File Pages 150-151, Vol. 3), D. S. Malyuk (Case
File Pages 167-168, Vol. 3), and A. N. Choumakov (Case File Pages 179-180,
Vol. 3) requesting trial by jury.
In this court hearing the defendants confirmed their earlier petition.
I find the petition to be legitimate and justified and subject to granting
pursuant to § 532(5) CCP.
Prosecutor A. G. Zerkova petitions for the case to be brought before a jury in
a public hearing on the charge brought against the defendants A. N. Choumakov,
D. S. Malyuk, and A. A. Dyachko pursuant to Article 102 (“a,” “a,” “M,” Article 218,
Part of the Criminal Code.
The Prosecutor also petitions for the following individuals to be summoned to
court for examination as additional witnesses : Surgeon S. Yu. Konovalstev
(Podolsk Central Regional Hospital); K. I. Kaledin, S. I. Trefilyev, and V. N.
Shafigulin (Vol. 1, Case File Page 99); experts A. M. Rozin (Vol. 1, Case File
Pages 81-85), R. R. Avetisyan (Vol. 1, Case File Pages 200-203); specialist N. I.
Parfyonov (Vol. V, Case File Pages 160-162).
The Prosecutor’s petition shall be granted.
Defense Attorneys E. Yu. Lvova, A. P. Lunin, and T. V. Gridnev took no
exception to the criminal case being sent for trial but petitioned for certain
evidence to be excluded from the case proceedings before the jury because in
their opinion this evidence was obtained unlawfully, in violation of the CCP.
In particular, the Defense Attorneys indicate that the case file does not
contain the authentic order commission a forensic medical examination of the
dead body of V. L. Gubkin; the said order was made by an unauthorized person –
an officer on duty of the 1st Municipal Militia Station of Podolsk – and not by the
investigator; the resulting examination report does not contain any indication of
professional training specialization or position of the person who conducted the
examination.
Records of interrogation of witnesses Yu. V. Solovyev (Vol. 1, Case File
Page 87), T. A. Malyuk (Vol. 1, Case File Page 105), N. M. Chelidze (Vol. 1, Case
File Page 106), G. A. Malyuk (Vol. 1, Case File Page 129); the record of search
conducted at D. S. Malyuk’s residence (Vol. 1, Case File Page 109), at A. A.
Dyachko’s residence (Vol. 1, Case File Page 113), and at A. N. Choumakov’s
residence (Vol. 1, Case File Page 122); the record of D. S. Malyuk’s clothes
examination (Vol. 1, Case File Page 135); the record of personal search of A. A.
Dyachko (Vol. 1, Case File Page 99) – those examinations were conducted by
improper persons and on these grounds all deposited exhibits taken in the course
of these investigative actions, as well as records of expert examination of these
exhibits should be excluded as inadmissible for the reason of the said violations
of the law, as well as violations of § 84(1) CCP since no description was made of
the taken cartridge cases (Vol. 1, Case File Pages 63,61-62,141).
Records of face-to-face confrontation between A. N. Choumakov and D. S.
Malyuk (Vol. 1, Case File Pages 136-137; between A. N. Choumakov and A. A.
Dyachko (Vol. 1 Case File Pages 138-139) – their right to defense counsel was
grossly infringed upon because as defendants they had been warned of
responsibility under Articles 181-192 of the Criminal Code.
Protocols of inspection of the scene of the crime with the defendants D. S.
Malyuk (Vol. 1, Case File Pages 152-153), A. A. Dyachko (Vol. 1, Case File
Pages 160-161), and A. N. Choumakov (Vol. 1, Case File Pages 178-181) in
attendance – it remains unclear what specific investigative action was performed,
those investigative actions were performed in the absence of defense attorneys
for Dyachko and Choumakov; the record of the investigative action was not
signed by Choumakov; and A. A. Dyachko’s legal status was not indicated.
Attachments to records of interrogation of N. E. Dyachko (Vol. 2, Case File
Pages 21-28), N. V. Ulitina (Vol. 2, Case File Pages 112-119), Yu. V. Gudnov
(Vol. 2, Case File Pages 182-186) – the interrogation of the said persons is in
conflict with § 156 CCP and was conducted in violation of § 165 CCP since in fact
these records are actually the records of identification of a person by photograph.
Defense Attorney T. V. Gridnev also makes a motion for exclusion of the
record of interrogation of the defendant A. N. Choumakov (Vol. 1, Case File
Pages 172-174) from the general mass of evidence since he was charged under
Article 102 of the Criminal Code and was interrogated in the absence of a
defense attorney, which violated the defendant’s right to defense counsel; and the
record of interrogation of A. N. Choumakov as a suspect (Vol. 1, Case File Pages
103-104,106), because at the time of the interrogation he was not detained on
suspicion of having committed a crime (Vol. 1, Case File Page 102), hence, he
could not be interrogated as a suspect.
Having discussed the above motions with the parties in the proceedings and
having heard the opinion of the Prosecutor, I find that the motions must be
granted in part.
As follows from the case materials, the mother of the defendant D. S. Malyuk
– G. A. Malyuk was interrogated in the course of preliminary investigation in
violation of the law, because her right not to testify against her son pursuant to the
provisions of Article 51 of the RF Constitution (Article 67 of the Constitution
effective in 1993) was not explained to her. Hence, the record of her interrogation
is to be excluded as inadmissible (Vol. 1, Case File Pages 105,129).
A search of A. N. Choumakov’s apartment (Vol. 1, Case File Page 122) was
conducted by Senior Lieutenant of the Militia, V. A. Kiselev, however, the case
materials contain no separate order made by the investigator authorizing V. A.
Kiselev to perform the said investigative action. Neither was he appointed to the
investigating team (Vol. 1, Case File Page 86,60). Hence, the said investigative
action was not performed in a proper manner and constitutes inadmissible
evidence.
In the process of this investigative action telescopic sights and a device in
the form of an arch were seized.
Considering that the said exhibits were seized in violation of the law, the
report of the ballistic examination #368/13-7 of May 6,1994 (Vol. 1, Case File
Pages 233-136) also constitutes inadmissible evidence and is to be excluded
from the general mass of evidence. On October 18,1993, A. N. Choumakov was
presented with a charge under Article 102 Paragraphs “a,” “a,” “M” of the Criminal
Code, but his interrogation was conducted in the absence of a defense attorney,
which was an infringement of his right to defense counsel. Hence, the record of
his interrogation (Vol. 1, Case File Pages 172-174) is to be excluded from the
general mass of evidence.
The defendant A. N. Choumakov’s signature is missing from the record of
inspection of the scene of the crime (Vol. 1, Case Files Pages 178-184). Hence,
the record was prepared in gross violation of provisions of § 141 CCP and shall
also be excluded as inadmissible.
As follows from the records of interrogation of N. E. Dyachko (Vol. 2, Case
File Pages 21-28), N. V. Ulitina (Vol. 2, Cvase File Pages 112-119), Yu. V.
Gudnov (Vol. 2, Case File Pages 182-186), during the interrogation they all were
shown photographs for identification, but the records of identification were not
made in a proper manner, which constitutes a gross violation of § 165 CCP.
Hence, the attachments to the records of these interrogations are also to be
excluded.
However, at this court hearing it is impossible to make a determination on the
issue of admissibility/inadmissibility of the records of face-to-face confrontation
between A. N. Choumakov and D. S. Malyuk (Vol. 1, Case File Pages 136-137);
between A. N. Choumakov and A. A. Dyachko (Vol. 1, Case File Pages 138-139)
because this decision can be made only after the defendants are interrogated
which is not provided for at the preliminary hearing. It is either impossible to make
a determination with regard to the record of inspection of the scene of the crime
conducted with A. A. Dyachko in attendance (Vol. 1, Case File Pages 160-162)
without interrogating expert N. I. Parfyonov who was involved in this inspection.
As seen from the protocol filed on pages 152-153, Vol. 1 of the Case File,
headlined “Record of Inspection of the Scene of the Crime with the Defendant in
Attendance,” the defendant is D. S. Malyuk, and this investigative action was
performed pursuant to § 183 CCP and with the involvement of a specialist to
whom his rights were explained as provided under § 133.1 CCP. Proceeding from
the above, an investigative experiment was conducted, which constitutes
evidence pursuant to § 69 CCP, however, this investigative action cannot be
described as “onsite verification of testimony” because § 183 CCP by which the
investigator was guided in this instance does not provide for such investigative
action. It should also be noted that the investigator put the typographically printed
phrase “onsite verification of testimony” in parenthesis and above it the phrase
“Record of Inspection of the Scene of the Crime with the Defendant in
Attendance” is typewritten which also constitutes evidence pursuant to § 69 CCP.
It should also be indicated that by rules of Russian grammar, wrong text should
be put in parenthesis when corrected, which was done by the investigator in this
instance.
I find that the records of interrogation of A. N. Choumakov as a suspect are
in compliance with the law and there is no ground for considering them
inadmissible.
The case contains a written request by investigator O.A. Holmanov (Vol. 1,
Case File Page 86), dated October 8,1993, addressed to the Head of the
Podolsk Municipal Office of the Interior, to place under O. A. Holmanov’s charge
the following persons for performing investigative actions : Akulin, Baidulov,
Sokolov, Parfyonov, Antipov, and Yaschenko. This request constitutes an actual
mandate for the said individuals to perform investigative actions. Those were the
individuals who conducted interrogations of the witnesses Yu. V. Solovyev (Vol. 1,
Case File Page 87), N. M. Chelidze (Vol. 1, Case File Page 106), conducted a
search at D. S. Malyuk’s place (Vol. 1, Case File Page 109), at A. A. Dyachko’s
place (Vol. 1, Case File Page 118), inspected clothes of D. S. Malyuk (Vol. 1,
Case File Page 135), searched A. A. Dyachko when placing him under arrest
(Vol. 1, Case File Page 99). Therefore, the said investigative actions were
performed by duly authorized individuals and are not to be excluded from the
general mass of evidence. Hence, no exhibit seized in the course of the said
investigative actions and no criminalistic examination of the said exhibits are to be
excluded. It should also be noted that a detailed inspection was conducted of the
car VAZ-2108 and the results are reflected in its inspection record (Vol. 1, Case
File Page 66), and the powers of attorney seized in the course of investigation are
included in the case (Vol. 1, Case File Pages 97,110,114,117,118 and 119)
which may be reviewed in a court hearing.
The case contains a copy of an order commissioning a forensic medical
examination of Gubkin’s dead body (Vol. 1, Case File Page 80), because the
original is normally sent to the relevant expert agency. The said decision was
made by an officer-on-duty because such was the requirement of the moment.
Hence, the investigative bodies classified this as urgent investigative actions. All
other matters may be resolved at trial.
The case is subject to the jurisdiction of the Moscow Regional Court.
The evidence collected in the course of the preliminary investigation is
sufficient for bringing the case before the jury in an open court hearing.
No material violations of the criminal procedural law were committed which
would call for returning the case for additional investigation.
The indictment was prepared in compliance with provisions of § 205 CCP.
At present, there is no ground for changing the form of restraint chosen
earlier with regard to the defendants A. N. Choumakov, D. S. Malyuk, and A. A.
Dyachko.
On the basis of the above and being guided by §§ 221-223-1,432-433 CCP
[the court].
Decided :
That the criminal case on charges brought against Alexei Nikolaevich
CHOUMAKOV, Dmitry Sergeyevich MALYUK, Anatoly Anatolyevich DYACHKO
under Article 102, (“a,” “a,” “M”, and 218 Part I of the Criminal Code be brought
before the jury in an open court hearing at 10 :30 a.m. on June 15,1995, on the
premises of the Moscow Regional Court.
That the defendants, victim, Public Prosecutor, Defense Attorneys, witnesses
included in the indictment list, experts A. M. Rozin and V. R. Avetisyan be
summoned to appear in court.
That the following additional witnesses shall also be summoned to appear in
court : S. Yu. Konovaltsev, K. I. Kaledin, S. N. Trefilyeva, R. N. Shafigulin (Vol. 1,
Case File Pages 76,99), and N. I. Parfyonov (Vol. 1, Case File Pages 160-162).
That is be ensured that 20 jurors appear in court by the scheduled time.
That the form of restraint with respect to the defendants A. N. Choumakov,
D. S. Malyuk, A. A. Dyachko remain unchanged – the said defendants shall
remain detained.
That the following documents be deemed to have no force and effect and be
excluded from the case proceedings :
- Record of interrogation of G. A. Malyuk (Vol. 1, Case File Pages 105,129);
- Record of search at A. N. Choumakov’s apartment (Vol. 1, Case File Pages 122);
- Conclusion of biological [5] examination #368/13-7, dated May 6,1994
- (Volume 1, Case File Pages 160-162).
- Record of interrogation of A. N. Choumakov of October 18,1993 (Volume 1,
- Case File Pages 172-174).
- Record of onsite verification of testimony with A. N. Choumakov in attendance (Vol. 1, Case File Pages 179-184).
- Attachments to records of interrogation (Vol. 2, Case File Pages 28,119, 186).
This Decision shall not be appealed against or challenged.
Presiding Judge /signature/ L. M. Brykalova
Certified as a true and correct copy of the original. Judge of the Moscow
Regional Court :
NOTES
[*]
Lawyer, Moscow, Russia.
Lawyer, Moscow, Russia.
[1]Constitution of the Russian Federation, Article 50(2).
Constitution of the Russian Federation, Article 50(2).
[2]§ 69(3) CCP.
§ 69(3) CCP.
[3]§ 429 CCP.
§ 429 CCP.
[4]See the written petition for exclusion of inadmissible evidence and the decision of the
judge in the case of Choumakov, Malyuk and Dyachko charged with premeditated murder which was
heard in the Moscow Regional Court in which I acted as a defense attorney. See Appendix 1.
See the written petition for exclusion of inadmissible evidence and the decision of the
judge in the case of Choumakov, Malyuk and Dyachko charged with premeditated murder which was
heard in the Moscow Regional Court in which I acted as a defense attorney. See Appendix 1.
[5]Earlier – ballistic examination (translator’s note).
Earlier – ballistic examination (translator’s note).
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