Surrender: forms of fixation and rules of use in the process of investigation and consideration of a criminal case

Chabukiani Oksana Alekseevna ORCID: 0000-0003-0035-4469 Doctor of Law Professor; Department of Criminal Procedure; St. Petersburg University of the Ministry of Internal Affairs of Russia Professor; Department of Criminal Procedure; St. Petersburg Academy of the Investigative Committee of the Russian Federation 191015, Russia, Saint Petersburg, Pilyutov ave., 1, room 733 oksana_kartohina@mail.ru

Makarova Elena Nikolaevna ORCID: 0000-0002-6971-5405 PhD in Law Deputy Head of the Department; Department of Special and Automotive Engineering; St. Petersburg University of the Ministry of Internal Affairs of the Russian Federation 198206, Russia, Saint Petersburg, Pilyutov Pilot str., 1, room 728 makarova_elena78@bk.ru

One of the elements of the realization of the right to protection is the right to self-incrimination by reporting the fact of committing a socially dangerous act to law enforcement agencies.

The Supreme Court of the Russian Federation, in Resolution No. 29 of the Plenum of June 30, 2015 "On the practice of applying legislation by courts ensuring the right to protection in criminal proceedings", when explaining the elements of the right to protection, did not provide explanations on a number of essential provisions that allow the construction of an agreed defense position. However, such criteria were partially prescribed by the Supreme Court of the Russian Federation only a year later in the Decree "On the court verdict" dated November 29, 2016 No. 55. So, if the prosecution refers to the statement of surrender as one of the proofs of the defendant's guilt, then the court should check the fact of explaining the right not to testify against oneself, use the services of a lawyer, bring complaints about actions (inaction) and decisions of the preliminary investigation bodies and whether the possibility of exercising these rights was ensured. The importance of clarifying rights and the negative consequences of their omission are related to the previously stated position of the Constitutional Court of the Russian Federation that confession is actually considered as evidence, and therefore they are subject to the provisions of paragraph 1, Part 2 of Article 75 of the Criminal Procedure Code of the Russian Federation (for example, the Ruling of October 20, 2005 No. 391–O "On the refusal to accept for consideration the petition of Vasily Romanovich Podguzov for clarification of the ruling of the Constitutional Court of the Russian Federation dated October 14, 2004 No. 326-O").

Law enforcement practice is not unambiguous, judges approach the issue of using confession in the process of investigation and consideration of a criminal case in different ways ^{[3; 12]}. In preparing this article, reviews of all cassation instances of courts of general jurisdiction were studied and decisions were identified in the conclusions of which the absence of a defender when reporting the fact of a crime was regarded as a significant violation of the right to defense.

The analysis of reviews of the practice of the cassation courts of general jurisdiction on the recognition of a significant violation of the right to defense of the absence of a defender during confession prompted a number of questions (for example, a review of the practice in criminal cases of the Ninth Cassation Court of General Jurisdiction for the first quarter of 2021 or Reviews of the practice in criminal cases of the First Cassation Court of General Jurisdiction for the second and fourth quarters of 2023): is it possible to interpret broadly any voluntary communication of a person about a crime he committed by turning himself in? in which cases is a confession a reason to initiate criminal proceedings, and in which cases is it a reason to refuse to initiate criminal proceedings? what are the conditions for confessing guilt as evidence in a criminal case? does the refusal of previously given testimony entail the exclusion of the legality of initiating a criminal case or the possibility of confessing to the defendant's post-criminal behavior the existence of a mitigating circumstance (paragraph "i" of Part 1 of Article 61 of the Criminal Code of the Russian Federation)?

Before answering these questions, let's turn to the classical doctrine of criminal procedure and define what is meant in theory by surrender.

Within the framework of the criminal process, the nature of surrender and the conditions for its possible use as evidence were investigated by: N.V. Azarenok, O.A. Antonov, A.V. Biryukova, V.M. Bykov, N.I. Bykhovets, V.N. Grigoriev, N.V. Zhogin, M.A. Klassen, V.A. Lazareva, M.V. Lapatnikov, N.A. Morugina, N.E. Pavlov, E.A. Pakhomova, S.V. Suprun, F.N. Fatkulin, V.S. Shadrin, V.S. Chubykin and others. In their works, the authors considered the possibility of using confession either solely as a reason for initiating a criminal case, or as an excuse and proof of guilt, as an excuse and possible proof of the parties to criminal proceedings, as "other evidence" at the discretion of the subject in whose proceedings the criminal case is.

Summarizing the opinions of scientists, it can be stated that in the vast majority of studies, legislative terminology is indicated that a confession is when a person verbally or in writing voluntarily informs the body entitled to carry out criminal prosecution about a crime committed by him or with his participation ^{[6, p. 171]}. However, in their discussions about the possibility of using the information obtained, the authors are divided into several directions. The most significant are the following: a voluntary report by a person about a crime committed by him to law enforcement agencies authorized to investigate can be considered as a reason to initiate a criminal case ^{[9, p. 119]}, as a fact of admission of guilt and willingness to undergo restrictions related to criminal prosecution, and may be accompanied by active actions, aimed at assisting in the investigation ^{[2, p. 13]}, compensation for harm to the victim or reconciliation with him ^{[4, p. 64]}.

Voluntariness can be considered in several aspects: firstly, as an initiative of a person to report an act committed by him even before law enforcement agencies became aware of the crime committed (the reason for initiating a criminal case), or before establishing the person to be brought as an accused (the basis for resuming suspended in accordance with paragraph 1 Part 1 of Article 208 of the Criminal Procedure Code of the Russian Federation of the preliminary investigation). In this approach, the position of principle is whether a person understands about the awareness of law enforcement agencies about the fact of the act committed by him. The difficulty is presented by cases when timely communication is associated with the possibility of exemption from criminal liability. For example, in case of restriction of competition (Article 178 of the Criminal Code of the Russian Federation), when one of the accomplices is the first to voluntarily report a crime (note 3 to Article 178 of the Criminal Code of the Russian Federation), exerting unlawful influence on the result of an official sports competition or spectacular commercial competition (Article 184 of the Criminal Code of the Russian Federation), voluntarily reports this to the body having the right to initiate criminal case (note 2 to Article 184 of the Criminal Code), voluntarily surrenders the subject of the crime (note 4 to Article 200.1 of the Criminal Code, 228, etc. The Criminal Code of the Russian Federation), informs law enforcement agencies in a timely manner, thereby preventing the onset of socially dangerous consequences (note 2 to Article 2005 of the Criminal Code, Note 2 to Article 204 of the Criminal Code, notes to Articles 204.1 and 204.2 of the Criminal Code, notes to Articles 205, 205.1, 205.3, 205.4 of the Criminal Code), etc. In such cases, the person expects to be released from criminal liability without starting a preliminary investigation. At the same time, by virtue of Part 2 of Article 28 of the Criminal Code of the Russian Federation, the possibility of termination of criminal prosecution of a person in the presence of cases specifically provided for in articles of the Special Part of the Criminal Code of the Russian Federation is allowed according to the rules of active repentance, i.e. after the initiation of a criminal case, the establishment of all circumstances to be proved, obtaining the necessary conciliatory resolutions and the absence of objections, and solely at the discretion of the authority the subject in whose proceedings the criminal case is. But in accordance with the position of the Supreme Court of the Russian Federation (Review of judicial practice in cases of crimes related to illicit trafficking in narcotic drugs, psychotropic substances and their analogues: approved by the Presidium of the Supreme Council of the Russian Federation on June 26, 2024), exemption from criminal liability in specially provided cases "is an imperative norm, the application of which is mandatory regardless of the discretion of the inquirer, investigator or court." Moreover, when suppressing the onset of socially dangerous consequences as a result of timely information about the fact of committing a crime, the guarantee of exemption from criminal liability is precisely the reason for positive post-criminal behavior. The dissemination of the rules of termination in connection with active repentance makes such an appeal to law enforcement agencies impractical. Therefore, investigative practice follows a different path, namely, by refusing to initiate criminal proceedings due to the absence of corpus delicti in the act. I.e., in this case, a confession indicates a lack of intent to continue criminal actions, a voluntary refusal to bring the crime to an end with the actual possibility of completing the act.

Therefore, such a refusal should follow after consideration of the statement of surrender. This raises another question: what are the forms of such a message? The answer to it, in our opinion, is essential for the subsequent recognition of the testimony as admissible. Many people call volunteerism one of the important criteria for registration of surrender. But then why is leaving the scene of a traffic accident a qualifying type when committing crimes related to violation of traffic rules and operation of vehicles (for example, paragraph "b" Part 2, paragraph "b" Part 3 and paragraph "b" Part 4 of Article 264 of the Criminal Code of the Russian Federation), or an independent composition of "Abandonment in danger" (Article 125 of the Criminal Code of the Russian Federation)? An analysis of the norms of substantive law shows that a person's silence about the commission of an act that can lead to socially dangerous consequences forms an independent composition. Hence, the fact is called into question that every communication by a person about a crime committed by him is a confession? The practice in this case has not achieved uniformity. Some courts recognize the fact of reporting information about an accident as the basis for mitigating punishment and regard such a fact as a confession. Thus, by the verdict of the Mikhailovsky District Court of the Altai Territory, Mr. Sh. was convicted of driving under the influence of alcohol. During the appeal review, the sentence was changed, since the confession in the form of an oral appeal by a person to traffic police officers about a hit-and-run on a pedestrian and providing them with their vehicle was recognized as a mitigating circumstance (appeal resolution No. 22-4238/2020 of October 9, 2020) ^{[1, c 172-173]}.

There is also a question about the admissibility of reporting a crime committed by a person on social networks or messengers, sending relevant information by e-mail ^{[8, p. 189-190]}. We agree with E. A. According to Pakhomova, only sending a message to the official e-mail address of law enforcement agencies with subsequent voluntary surrender to employees of criminal prosecution bodies can be equated to a confession.

Thus, the forms of surrender are the communication by a person about a crime committed by him or in complicity with him: 1) orally, by appearing directly to law enforcement officers; 2) orally, by communicating information to law enforcement officers using technical means, followed by an appearance at the criminal prosecution authorities; 3) in writing, by sending relevant information, including through technical means of communication, followed by an appearance at the criminal prosecution authorities; 4) in writing directly in law enforcement agencies.

The variety of forms casts doubt on existing trends and draft laws (for example, Draft law No. 631546-7 "On Amendments to the Criminal Procedure Code of the Russian Federation (on improving the procedure for voluntarily reporting a person about a crime committed by him)", in which it is proposed to provide for mandatory participation of a defender in reporting a crime ^[10], including the number of proposals for the video recording of such an appeal.

In our opinion, as a reason for initiating a criminal case, a confession should not depend on a person receiving qualified legal assistance before such a message to law enforcement agencies or explaining his rights, including not testifying against himself. After all, it is the possibility of timely assistance to the victim, the exclusion of increased liability or the reduction of the consequences of a socially dangerous act that encourages a person to contact law enforcement agencies. The very fact of providing such information should be the basis for mitigation of punishment, regardless of whether the suspect, the accused, the defendant subsequently renounces his testimony or not ^{[7, p. 76]}, whether the resulting appearance has procedural violations or not ^[11]. But the possibility of using a confession as evidence in a criminal case should be assessed in terms of admissibility, reliability and relevance. We agree with V. A. Lazareva that only if a person confirms his confession, a confession can be recognized as evidence as a "different document". "Otherwise, the guarantees provided by Article 75 of the Code of Criminal Procedure of the Russian Federation are meaningless" ^{[5, pp. 234-235]}, since the interrogation can be replaced by testimony obtained outside the lawful procedure.

Considering the above, we consider it possible to answer the questions posed at the beginning of the article in the following way:

- is it possible to broadly interpret any voluntary communication of a person about a crime he has committed by turning himself in? Yes, any message to law enforcement agencies about the fact that a person has committed a crime should have positive consequences and stimulate positive post–criminal behavior, which means it should be regarded as a confession;

- in which cases will a confession be considered as a reason to initiate a criminal case? In all cases, with the exception of articles specifically provided for in the notes of the Special Part of the Criminal Code of the Russian Federation, when law enforcement agencies did not know about the fact of committing a socially dangerous act and they did not receive information about it from other sources;

- in which cases is a confession a reason for refusing to initiate criminal proceedings? In cases specifically provided for by the notes of articles of the Special Part of the Criminal Code of the Russian Federation, provided that timely information is provided and there is no other corpus delicti in the acts of the person who appeared;

- what are the conditions for confessing guilt as evidence in a criminal case? In all cases of compliance with the requirements for obtaining the testimony of the suspect, the accused, the defendant, including the right to defense and clarification of the right to self-incrimination;

- does the refusal of previously given testimony entail the exclusion of the legality of the initiation of a criminal case? No, it does not entail, since this is only the basis for recognizing that it is impossible to use a confession as proof of guilt;

- does the refusal of a previously given confession entail the possibility of confessing to the defendant's post-criminal behavior the existence of a circumstance mitigating the punishment (paragraph "i" of part 1 of Article 61 of the Criminal Code of the Russian Federation)? Yes, it entails, provided that the fact of the commission of a crime by this person is reliably established. The mitigating circumstance should be taken into account by the court, since in any case the information received affected the course and speed of the investigation and resolution of the criminal case.