Motion for judgment of acquittal: problems of legislative wording and practical application

Panteleeva Elena Vyacheslavovna Postgraduate student, the department of Criminal Procedure, Saratov State Law Academy 410028, Russia, Saratovskaya oblast', g. Saratov, ul. Michurina, 85 E.Panteleeva-mail@yandex.ru Other publications by this author

The current Criminal Procedure Law provides for four grounds for the decision of acquittal, which equally entail the recognition of the defendant as innocent and his rehabilitation. The analysis of the formulations of the grounds for the acquittal of the defendant, enshrined in Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation, indicates the absence of a uniform approach by the legislator to the presentation of these grounds. So, if paragraphs 2 and 3 of Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation indicate the established non-involvement of the defendant in the commission of a crime or the established absence of corpus delicti in the defendant's act, then paragraph 1 of this norm, on the contrary, refers to the "non-identification" of the crime event. In paragraph 1 of Part 1 of Article 24 of the Code of Criminal Procedure, defining the grounds for refusing to initiate a criminal case or its termination, the legislator speaks of "the absence of a crime event". As a result, a situation is created in which, from the point of view of the rules of the Russian language, a different resolution of the question of the evidence of a particular ground for making a rehabilitating decision is assumed.

It should be noted that the current Code of Criminal Procedure of the Russian Federation has largely adopted the tradition of formulating grounds for justification, since their first official consolidation in the Statute of Criminal Proceedings of 1864. Such a circumstance as a crime event has always been expressed through its "lack of proof" or "non-identification". For a long time, such a basis for the decision of an acquittal was formulated in a similar way as the lack of proof of the defendant's guilt, replaced today by "the defendant's non-involvement in the commission of a crime." The basis now fixed in paragraph 3 of Part 2 of Article 302 of the Code of Criminal Procedure of the Russian Federation, throughout the entire period of development of domestic criminal procedure legislation, was associated with the assertion that the defendant's act did not constitute a crime.

Thus, there has always been a dual approach to the semantic expression of the requirements of proof of the circumstances justifying the defendant in the Russian criminal process.

However, not only the different editorial form of the presentation of the grounds for justification in the law, but also different theoretical ideas about the need for proven absence or sufficiency of the unproven presence of an event, the corpus delicti and the defendant's involvement in it create practical problems in the process of proving the defendant's innocence.

Thus, R.M. Oganesyan believes that both the proof of the absence of a crime event and the lack of proof of its presence mean the same thing – the non-identification of the crime event ^{[1, p. 21]}. M. A. Mironova holds a similar opinion, believing that the term "non-establishment" includes both "reliable absence" and "unreliable establishment", while "absence" does not cover the concept of "unprovenness" ^{[2, p. 63]}. N. N. Sukhanova also points to the more universal nature of the concept of "non-establishment" ^{[3, p. 18]}.

Some researchers tend to believe that the concept of "failure to establish the event of a crime" should be interpreted solely as proof of its absence ^{[4, p. 14; 5]}. The opposite point of view is taken by processualist scientists who believe that the synonym of the category "non-identification of the crime event" is only "unprovenness of the crime event" ^{[6; 7, p. 125; 8, p. 377]}. As noted by D. V. Tatiana, the ground formulated in this way "is characterized by ... insufficient evidence for a reliable conclusion about the existence of the act" ^{[9, p. 85]}. In addition, the opinion was expressed that, on the contrary, the term "absence" of the crime event has a comprehensive character ^[10].

The current Code of Criminal Procedure of the Russian Federation gives a normative definition only to such a basis for the decision of an acquittal as "non-involvement", interpreting it as "unspecified involvement or established non-involvement of a person in the commission of a crime" (paragraph 20 of Article 5 of the Code of Criminal Procedure of the Russian Federation). Thus, it is officially recognized that the scope of the named basis consists of two "criminal procedural conclusions with different levels of knowledge and different amounts of evidence" ^{[11, p. 22]}, entailing the same decision on acquittal as a result of non-confirmation of the fact that this particular citizen committed a crime. Since the established non-involvement means "a reliable level of knowledge that a particular person did not commit the incriminated act and the amount of evidence collected is sufficient for such a conclusion" ^{[11, p. 22]}, it, as a component of the above definition, does not raise questions.

The second form of non-involvement, expressed through the failure to establish the fact of the commission of the crime imputed to him by the person brought to trial, is questioned due to the fact that "it assumes a probable level of knowledge about the involvement or non-involvement of a particular person in the crime committed and the insufficient amount of evidence collected for an accurate conclusion about his guilt or innocence in the absence of the possibility to collect additional evidence" ^{[11, p. 22]}. In this regard, process scientists talk about the incorrect two-component content of the formulation of the justification grounds contained in paragraph 2 of Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation ^{[12; 13, p. 15]}.

Proceeding from the rule of understanding and presentation of this ground fixed in the law, it can be assumed that the acquittal on such grounds as the absence of corpus delicti in the defendant's act (paragraph 3, Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation) is possible, both with clear evidence of this absence, and with insufficient evidence of the presence of a crime event. In accordance with this logic, it can also be assumed that the wording of paragraph 1 of Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation, as determining a different degree of proof of the established fact, on the contrary, implies only insufficient confirmation of the existence of a crime event.

However, this situation seems rather strange, given that the reliable establishment of justifying circumstances unconditionally indicates the innocence of the defendant and is the unconditional reason for the decision of the acquittal. Another version of the interpretation of the concept of "non-establishment" used in paragraph 1, Part 2 of Article 302 of the Code of Criminal Procedure, as admitting both positive and negative fact, due to the absence of a normative explanation of the content of the justification grounds set out in paragraph 3, part 2 of Article 302 of the Code of Criminal Procedure, determines that the absence of corpus delicti can be stated only in the case of reliable confirmation the fact that there are no signs of a crime in the act committed by the defendant.

At first glance, such legal and technical inaccuracies are the subject of only scientific discussion and do not have sufficient practical significance. Nevertheless, the correct determination of the factual data forming the basis for the acquittal depends on whether the court will decide to find the defendant innocent. The court should clearly understand in which case it can state the existence of grounds for an acquittal: only if there is a sufficient body of evidence confirming the absence of an event, the corpus delicti, the non-involvement of the person being prosecuted in it, or it can limit itself to the lack of proof of the charge. Even a small uncertainty in the criteria for making a decision on acquittal can affect the fate of a particular person subjected to criminal prosecution.

It seems that the solution to this problem is connected with the requirements imposed on the truth of the acquittal as the final decision of the court. If, by virtue of Part 4 of Article 14 of the Criminal Procedure Code of the Russian Federation, the confession of the accused cannot be based on assumptions, then the conclusion of his innocence can be made already in connection with the non-confirmation of the prosecution version. By virtue of the principle of presumption of innocence, if the wrongfulness of an act or its commission by a specific person is not established and proven in the relevant criminal procedural procedures, all doubts should be interpreted in favor of this person, who - with regard to the issue of criminal responsibility – is considered innocent ^[14].

Thus, in accordance with the legal consequence arising from the principle of presumption of innocence that unproven guilt is equivalent to proven innocence, an acquittal should be issued "in cases where the court does not have positive knowledge about the picture of the criminal event that occurred and the role of the defendant in it" ^[15]. Consequently, the actual basis for making an acquittal decision can be both reliable knowledge that the defendant is innocent of committing a crime, and the lack of proof of the prosecution's version of his guilt in a criminally punishable act, which arose either as a result of objective reasons related to the limited means, methods of criminal procedural knowledge, or with a poorly conducted preliminary investigation.

The peculiarity of justification is that, in general, it is associated with the establishment of so-called "negative facts" ^{[16, p. 212]}. Proving what did not exist in objective reality often turns out to be quite difficult. It is no coincidence that, due to the complexity of the argument, innocence, which is a collective concept relative to the grounds of justification presented in the law, is not included in the list of circumstances of the subject of proof (Article 73 of the Code of Criminal Procedure of the Russian Federation). For this reason, as a rule, the descriptive and motivational part of the acquittal is based on the refutation of the evidence presented by the state prosecution.

So, K. was accused of being the acting head of the correctional colony, in March 2017 he signed a state contract based on an uncompetitive method of renting premises with an organization to attract convicts to work on the production of canned vegetables. At the same time, he did not coordinate this transaction with the concerned departments of the correctional institution, including the legal service, with the Department of the Federal Penitentiary Service for the Belgorod region. In addition, the provisions of the contract provided for the extension to the relations that arose before its conclusion, began to operate from January 2017. Thus, according to the prosecution, K. allowed inefficient use of budget funds in the amount of 1,970,700 rubles. In the verdict, the court indicated that the fact of the defendant's conclusion of a state contract with a legal entity in March 2017, based on the accusation, does not consist in a causal relationship with the harmful consequences that have occurred and does not form a crime in his actions, provided for in Part 1.1 of Article 293 of the Criminal Code of the Russian Federation; the job description of the head of the correctional institution does not contain information about familiarization the fact of the lack of coordination with the Department of the Federal Penitentiary Service for the Belgorod region is actually refuted by the content of telephone conversations with the head of the specified body, direct participation in the acceptance of the first batch of canned vegetables by the deputy of the latter; the actual fulfillment of the terms of the contract since February 2017 prevented K. from refusing to sign it (conclusion), since it could lead to to the disruption of the execution of 12 government contracts related to the supply of canned food, and the onset of other harmful consequences. Taking into account these circumstances, on September 18, 2020, the district court acquitted K. on the charge of committing a crime under Part 1.1 of Article 293 of the Criminal Code of the Russian Federation, on the basis of paragraph 3 of Part 2 of Article 302 of the Criminal Procedure Code of the Russian Federation, since there was no corpus delicti in the defendant's act ^[17].

  The analysis of the provisions of Articles 299, 339 of the Criminal Procedure Code of the Russian Federation allows us to conclude that it is a negative answer to whether it is proved that the act took place, that the defendant committed this act, whether the defendant is guilty of committing this act, is the basis for the acquittal verdict, the decision of the acquittal. Thus, in addition to the fact that the justification is connected with those facts that were absent in reality, it, by virtue of the questions asked during the adoption of the final act on the case, always indicates a negative resolution of the evidence of the circumstances that should be established to confirm the charge.  In this regard, the position of I.S. Dikarev seems fair that "even when the defense side manages to positively prove the defendant's non-involvement in the commission of a crime or the absence of a crime event at all, it is the lack of proof of the accusation that still acts as the basis for justification" ^[15].

Based on the above, it seems appropriate to abandon the use of the term "non-establishment" in the text of the law, since, by virtue of the principle of presumption of innocence, which applies to all stages of criminal proceedings, to all types of criminal procedural activities, the acquittal of the defendant without additional regulation is equally possible, both if the absence of the previously mentioned circumstances is proved, and if their presence is not proven. In order to eliminate legal uncertainty, paragraph 20 should be deleted from the text of Article 5 of the Code of Criminal Procedure of the Russian Federation. In addition, in view of the need for uniform application of the law, it seems correct to bring the norms of paragraph 1, part 1, Article 24 and paragraph 1, Part 2, Article 302 of the Criminal Procedure Code of the Russian Federation into compliance, with the predominant use of the term "absence" of the crime event.