What it is necessary to know about criminal proceedings. The navigator from the Chief information officer sentenced to 5 years after 28 months of court
The ex-head of committee on informatization and communication of the Komi Republic Alexander Selyutin sentenced to 5 years under the article about fraud, and who did not admit the guilt wrote for TAdviser article – the navigator on criminal proceedings. The ex-official's spouse Olga Selyutina helping it to be protected throughout more than two years' judicial proceedings acted as the coauthor of material.
Circumstances of own criminal case, councils of an environment, similar stories to which we pay attention without fail now – provoke to more extended coverage of a subject through personal contact, through publications in social networks, through writing of similar articles. There is a wish to share, warn, "spread straws" to all who are forced to be influenced by troubles of collision with the judicial and investigative machine.
IT specialists are children, as a rule, creative, quite trustful and direct. These properties – positive and in a profession – can play in normal life against the owner if that comes into the view of "law enforcement authorities". A habit it is correct to work (on written, properly, in an amicable way) and waiting of the same in reply inevitably leads, at best, to disappointments what the mature person can quite cope with, but at worst – to problems and serious consequences. Let not all, but many of such problems, in our opinion, it is much simpler to prevent as to solve them after emergence can be difficult or it is already impossible.
Therefore we will try to describe in the form of certain "navigator" what can expect on this way. And, above all, how not to make gross errors if suddenly these millstones, after all, hooked.
At once we will make a reservation – terminology, classification, even actions can cause "bewilderment" in professional lawyers. But the narration purpose – not a thesis defense of the lawyer, but sincere desire to share the accumulated experience and the typed cones.
For a start we will list the main milestones of criminal case which can wait at a stage of pretrial investigation:
- Criminal proceedings.
- Conducting investigation.
- Presentation of preliminary charge by investigation authorities.
- Election of a measure of restraint.
- Acquaintance with the criminal case file.
- Transfer of criminal case to prosecutor's office.
- Presentation of final charge.
- Transfer of criminal case to court.
- Judicial proceedings.
- Acquaintance with the protocol of court sessions.
- The appeal on court's decision of the first instance.
Let's stop on these points, if it is necessary to reach the last of this list, then by that moment it will be gathered already rather own understanding how to move further.
So, criminal case is brought. What to begin with?
From purchase of a dictophone. It is not a joke. It is possible that this step in the subsequent will save you. We recommend the models focused on records of lectures in big halls. The matter is that similar dictophones allow to make high-quality record in volume premises even of quietly speaking people. We, for example, used Sony IPX 333. Purchase and do not spread it from a pocket any more. You monitor accumulators.
Do not forget to install on phone (if is not present in basic functionality) mobile application which will log calls and, if necessary, it will be required to keep their record at communication with the investigator and others.
The next step – search of the lawyer. It is ideal if it has, in addition to legal, also technical education or work experience in the IT sphere. It is a lot of examples when in the past the IT specialists who once qualitatively underwent judicial proceedings become lawyers in affairs of an IT profile.
When choosing the lawyer take into account, in addition to a professional portfolio, personal qualities – also the comfort in communication, and an activity rate (depends including on presence at the lawyer of parallel affairs), and technological effectiveness (for communications, exchange of documents, remote work), and, of course, obligation is important.
The choice of the lawyer is similar to the choice of the stomatologist. If that to a descent suggests to pull out a painful tooth (to conclude the bargain, to write an appearance), allegedly, on purpose then to understand what to do (to receive milder pinishment), then, most likely, you will run away from it. If at first "types your mouth wax" to make a mold (tries to penetrate, after all, into case), and already, having created model, looks for the solution, then chances to live up to an old age with the teeth significantly raise.
It is important to remember that replacement of the lawyer at each subsequent stage of criminal case, first, significantly increases expenses on protection, secondly, inevitably leads to loss of a set of useful nuances of the previous stages to which you could just not pay attention owing to lack of experience of similar actions.
What it is necessary to remember always: it is not necessary to trust in the staff of investigating bodies and prosecutor's offices – they solve the problem which definitely not for the benefit of the defendant (otherwise there would be no criminal case). The good lawyer will tell the same, also will add – to the lawyer too.
Yes! Do not take in head to agree to a bribe for solution of the case! Arrest cases are not rare just in attempt to bribe. Punishment for it – from 7 years of imprisonment.
From the very beginning it is necessary to understand that you have a right as the defender in addition to the lawyer "appoint" the close relative (the child, the spouse, the parent, the brother/sister). It will give additional opportunities for protection and will allow to communicate, in case of, for example, sending to the pre-trial detention center more often than the put two appointments in a month on an hour.
After criminal proceedings it is possible to expect searches in the house, at relatives, at colleagues, in workplaces of defendants, suspects and witnesses.
During searches practically all technical equipment which has memory cells is withdrawn. It will be possible to return it back, most likely, only after the introduction of a sentence to force.
Unfortunately, often it becomes not only (and even not so much) to find any proofs, and, first of all, to put psychological pressure, "shake you". To it it is necessary to be ready. And "not react" to it in psychological sense. It is hard, but to a wave it is possible. Believe.
It is worse if to begin "shake" you, opening cases on your relatives. There were cases when active "attacks" on aged parents began. All this, most likely, becomes with one purpose … Council one – keep! Do not do the courses about which then you can regret.
In the same time it is possible to expect interrogations and confrontations.
If appeared on interrogation without lawyer, refuse interrogation better. Believe – you have the right to it! What you would not be told. Will try to give you the "duty" lawyer, however, you have a right within 5 days to sign the agreement with the. Before tell nothing at all! Refer to the 51st article of the Constitution. If, after all, you appeared on interrogation without "the" lawyer, then be quiet and attentive. First of all, kill illusion that "I will explain everything to them now"! Even if you will give them incontestable proofs of the innocence, they, quite possibly, will find "witness" who "will break" your arguments, or "will prepare" rebutting evidences.
Answer only those questions which are asked. The investigator's phrase "these circumstances do not interest us" – not an occasion not to specify a circumstance in the protocol, insist on fixing if you consider them really important.
Be ready to attempts of the investigator to discompose you – through nonideal stories of the personal relations, through deception that someone already showed something and "it is simpler to confess", through something else. Before interrogation fairly carry out internal inventory and be prepared for such questions – even not to answers to them, and to questions.
Certainly, be ready to "transaction". Probability is very high that will suggest "simplify your provision" if you give the "necessary" evidences concerning the third parties. We have definitely no right to give any advice concerning your behavior in this case, here to solve only to you. Anyway, definitely we do not recommend to hurry with the solution. Investigation pressure almost for certain means lack of sufficient evidences. The offer of the transaction – too.
During interrogation attentively read the protocol, do not allow to reprint it under no circumstances. It can save you in the subsequent from criminal prosecution. You make all changes the hand if changes much – issue a single sheet and refer to it in the main protocol. Undersign on each sheet.
Presentation of preliminary charge
After sight preliminary charge of surrender cannot be any more. More precisely, will say to you that you can write it, but … If make up the mind to such step at the current stage or later, the court just will not accept surrender. But to these you will give an excess trump in a game to the opposite party – can begin "extend" confession. Do not confuse "surrender" and rendering assistance to the investigation. The appearance really can strongly simplify further process. But the appearance will be an appearance if only you came and told everything even before brining a charge.
The most important problem of those who get to criminal case – as the defendant the suspect or the witness is a strange sort trustfulness. Those who, feeling for itself "sins" which as it seems to it, can be known to the investigation and can create problems begin to give the "necessary" evidences, in the subsequent becomes the eternal puppet. As a result, beginning to harm for illusive "bonuses" to the stranger against whom has a grudge or which is not pleasant to him, and even is simply indifferent ("Well who is he to me?"), drives also itself into a trap. Such "well-wishers" – permanent fuel for this machine which firemen, apparently, are taught since childhood that fair citizens are not and if the citizen did not confess – means "fireman" badly worked.
Election of a measure of restraint
Election of a measure of restraint is always the action requiring conducting court session.
In the same court session issues of a seizure of property and accounts can be resolved.
Here it is possible and it is necessary to petition for appointment of one more defender, in addition to the lawyer, according to Part 2 of Article 49 of the Code of Criminal Procedure of the Russian Federation: "by determination or the court order as the defender one of close relatives of the defendant or the other person for whose admission the defendant petitions can be allowed along with the lawyer". So it is possible to specify the wife or the son/daughter as the second defender. For this purpose they do not need to have legal education – article of such restrictions does not impose.
As a measure of restraint by court pledge, house arrest, recognizance not to leave, detention and other can be defined.
At house arrest not dischargeable bracelet is put on a leg, in the apartment the controlling equipment which sends information to the operator is installed. Violation of the set mode attracts arrest with sending to the pre-trial detention center (pre-trial detention center). Therefore it is worth installing the webcam which will remove round the clock an entrance door of the apartment – it can secure in case of failure of the installed equipment, serve as confirmation that the arrested did not leave the apartment. There were cases when checking approached to the door, quietly (under record of the video recorder) knocked at the doors. The arrested, let us assume, slept at this time, took a bath or listened to music. And next day he was already carried to court and changed a measure of restraint.
In the pre-trial detention center it is bad, unpleasant, but it is not impossible. Now for investigators of the pre-trial detention center, unfortunately, one of the main tools of pressure upon the defendant (prohibition of appointments with the family and calls, will lock correspondences, frequent movement between cameras, especially "unpleasant" neighbors and other).
If the spouse/spouse was provoked to making any indications to the investigation earlier, it can be the cause for failure in appointments. In order to avoid this situation it is necessary to apply Article 51 of the Constitution of the Russian Federation: "nobody is obliged to testify against himself, the spouse and close relatives whose circle is defined by the federal law", and to refuse making any indications. Can frighten that will put for resistance to the investigation – do not give in!
The most important in the conditions of the pre-trial detention center – preserving of health. In advance prepare all medical certificates and statements, through the chief of a medical medical unit of the pre-trial detention center the family with these papers will be able to be given assignment about regular acceptance of necessary drugs and a possibility of their transfer. Do not neglect physical exercises, configure relatives on regular providing with healthy products and sanitary and hygienic accessories.
Acquaintance with case papers
About the investigation, about the interrogated persons and their indications you learn about all official materials and documents of criminal case during acquaintance with the criminal case file (Article 217 of the Code of Criminal Procedure of the Russian Federation).
Often try, using confusion of defendants, at once to receive the signature or on the document on acquaintance with materials, or on failure from acquaintance ("Yes what there to read!?"). Be accurate! This moment – knowledge of all case papers – is key in the forthcoming protection.
It is better to do photocopies at once, there are practically no restrictions in it now. But precisely you should not remove all volumes at once – as soon as you undersign for the last volume, the investigator will consider that acquaintance is complete, and will prepare case for transfer to prosecutor's office. It can deprive of you an opportunity, for example, to request materials for repeated acquaintance or to direct petitions on again arisen circumstances with the requirement, say, of a confrontation or examination.
In case of stay in the pre-trial detention center, access to the equipment will not be – in this case production of photocopies needs to be charged to the lawyer or the defender allowed by court.
Already at this stage prepare "navigators" on criminal case for simplification of work with materials during judicial proceedings – fix arrangement of key documents in volumes and in physical evidences.
Also remember – always, under any circumstances, having the agenda about an appearance to the investigator, in due time you should stand, at least, on the check point before an input in investigative department, and to be better already at the investigator in an office! Even if the investigator at a meeting will tell that it is possible not to come! Even if will call and will tell what will be absent! Absence according to the agenda – a legal reason for change of a measure of restraint for the worse.
It is important! If you want to leave by any method from court (to receive the pre-trial agreement, to achieve removal of claims by the victim, "dump on the neighbor"), then the current point – extreme where you are able to do it. When you sign acquaintance with case papers, the investigation will be completed. Further the flywheel will already be not to stop – be ready to it. So following (and rather the first) your fight will be already in court – and there "rumple" precisely it will not turn out any more. Strakh of court will shout to you: "Give up!"
Think – you are precisely ready to break? And if you want honesty and justice, then be ready to face justice … with what should be justice.
Transfer of criminal case to prosecutor's office, presentation of final charge and transfer of criminal case to court
Each of these stages passes with the notification of participants on change of the status of case, with presentation for acquaintance of related documents.
The investigation after acquaintance is closed, materials go to prosecutor's office which within 10 days should make the decision – whether it is ready to go with these materials to court, there to support and protect charge.
The prosecutor's office, as a result, will issue the indictment which, in addition to the text of the charge, will contain a list of proofs on which charge relies, and outputs on them.
The indictment – the first document from which it will be possible somehow to try to understand on the basis of what you are considered guilty of crime commission. In the same place witnesses whom the party of charge will subpoena for interrogations will be listed.
The first – in 14 days after sight of charge – the preliminary meeting at which charge will be read will take place, the question of the attitude towards him is asked ("Clear? Agree? Do you recognize?"), the measure of restraint for judicial proceedings is chosen and the judge is appointed to all subsequent process.
Within a month proceedings on the merits of criminal case will begin after that.
Should be prepared for the beginning of judicial proceedings:
by a technical part –
- The notebook with the systematized case papers. All materials should be organized so that there was an opportunity quickly to lift any documents, interrogations, lists and so forth.
- Dictophone for process audiofixing. For maintaining an audio recording of court sessions it is enough to notify on it court.
- The video camera or the webcam with the notebook for process video fixing. For conducting video fixing it is required to get permission from court – therefore courts refuse to a thicket. In the petition for maintaining a video it is possible to be guided by Article 241 of the Code of Criminal Procedure of the Russian Federation.
by a legal and methodological part –
- Strategy of protection.
- The navigator according to the criminal case file.
- Questions to witnesses for the prosecution.
- Circle of potential defense witnesses.
- List and questions of necessary examinations.
- The list of petitions and their terms for giving in court.
- Contradict the case papers obligatory to announcement.
- The list of the additional materials which are absent in criminal case (documents, regulatory legal acts, requests in different departments and other).
During legal procedure it is important to fix:
- The materials announced and studied by court – it will be possible to rely only on them at interrogations of witnesses, by preparation of petitions, in the protection and so forth.
- Dates of interrogations of witnesses, specialists, experts. Referring to them in indications or petitions, it is important to specify when interrogation took place. Studying the protocol of court session, it will be possible to begin acquaintance with the most important interrogations – then if acquaintance will be compulsorily limited to court, losses will be minimum.
- The protection of the petition and the solution on them given the party.
- Procedural errors are the violations allowed by court. This information will go to a kopilochka of future instances if it is required – and it can be much. Important already on start of judicial proceedings to understand what errors are and what field of activity they for you open.
It is important to adjust regular work on shorthand of court sessions on the made audio recordings. It is especially important to transfer interrogations of witnesses, specialists and experts to printing option. These materials can play a huge role at a stage of acquaintance with the protocol of court session and preparation of notes to it.
Shorthand – process not too creative, but very labor-consuming therefore it is quite possible to involve for this purpose freelancers or relatives. Surely you carry out express audit of results of shorthand as the quality can be very different, surnames, company names and professional terms can incorrectly be told. Therefore it is better to involve in shorthand of people near - a professional circle.
Order comparison and if discrepancies are revealed, shorthand of those audio recordings which shorthand reports are presented in the criminal case file (look for these audio recordings in physical evidences). Discrepancies can be very essential – in this case important not to disregard them, to petition for familiarizing with criminal case of correct shorthand reports and information on discrepancies …
On the description these stages, perhaps, so far it is possible to stop. We consider that legal procedure – one of those actions for which both process, and its outcome can depend on quality of preliminary preparation.
Certainly, the "recipes" provided by us – not a panacea as all this action can proceed very individually. And always at it there is a creativity element – the legislation, very flexible at us, a lot of things depend on people on places, on their internal qualities and the principles.
It is important to learn "be all eyes" – to notice all parts, to listen attentively to each word, without throwing back any of puzzles that will fall into hands. The best comparison, in our opinion, for criminal case is a quest – with intensity of emotions, with a set of input data and with riddles. The quest which, however, can will end sadly, and own insufficient participation in process, or the relation on "perhaps", or some wrong moves can become the reason of it. It is important to fix everything – the ideas, documents, events (including external, at first sight, not having a direct bearing on case), reaction and actions of an environment (both former, and again formed) and other.
Yes, and it is important to have patience – serious charges, as a rule, promise a long distance. It is possible to draw an analogy to project management: at the number of participants in several tens (or even hundreds), at the information volume of tens or one hundred volumes with not read size of electronic materials, at duration of a year to several – the project belongs to discharge large, having including the biggest coefficient of uncertainty. It is important to understand, as the chief director of tasks, both the main implementor, and the chief controller on this project – you are!
There is an ordinary phrase: "Experience is a set of situations into which you will never get". Let this instruction will be that "experience" which will allow you to avoid troubles.