Cassation ruling of the Supreme Court of the Russian Federation in the case of the murder of Roland Franz Epassac

*We are publishing the text of the cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated November 2, 2006, according to which the acquittal against a group of people accused of the murder of a citizen of the Republic of the Congo, Roland Franz Epassac, issued on July 27, 2006, was overturned.

The text is reproduced according to the publication on the official website of the Supreme Court of Russia.*

CASSATION DEFINITION

November 2, 2006 Moscow

Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation

presiding <...>

judges <...> and <...>

examined at the hearing of 2 November 2006 the cassation presentation of the public prosecutor Mazurova D.N. to the verdict of the St. Petersburg City Court of July 27, 2006, by which

GERASIMOV Andrei Vladimirovich , born December 28, 1984 in the village. Bolshevik of the Susumansky district of the Magadan region, previously convicted

February 10, 2005 under Part 2 of Art. 213 of the Criminal Code of the Russian Federation to 2 years of imprisonment on probation for 2 years

GROMOV Yuri Borisovich , born December 20, 1985 in Leningrad, not convicted

OLENEV Andrey Anatolyevich, born on January 20, 1982 in Leningrad, not convicted

ORLOV Viktor Anatolyevich , born March 18, 1988 in Leningrad, not convicted

on the charge brought against them of committing a crime, under subsection.n. "g", "l" part 2 tbsp. 105 of the Criminal Code of the Russian Federation, acquitted for non-involvement in the commission of a crime.

Gerasimov, Gromov, Orlov and Olenev were charged with premeditated murder of a citizen of the Republic of the Congo R.F. Epassac. motivated by racial hostility and hatred by a group of persons by prior agreement.

By the jury's verdict, they were found not to be involved in the commission of this crime, in connection with which the court issued a verdict of not guilty.

After hearing the report of the judge <...>, the speech of the prosecutor Filippova E.C., who supported the arguments of the cassation submission to cancel the sentence, objections of lawyers Kalmykov N.AND., Antonov A.The. and Drobyshevskaya T.P., who believed to leave the cassation presentation without satisfaction, and the verdict - unchanged, the judicial board

installed:

In the cassation submission, the question was raised about the abolition of the verdict, the direction of the case for a new trial.

According to the submission's arguments, during the entire hearing of the case, the defendants and their lawyers exerted unlawful influence on the jurors, which influenced the formation of the opinion of the jurors, the content of their answers to questions.

During the preliminary hearing, the petition of Antonov’s lawyer to recognize as inadmissible evidence the protocol of identification of Orlov, the protocol of confrontation between Gerasimov and Gromov, the protocol of Olenev’s confession, the protocol of checking Olenev’s testimony on the spot, the protocol of checking Gerasimov’s testimony on the spot, the protocols of interrogation of Gerasimov as the accused , the suspect. All this evidence was recognized by the court as obtained in compliance with the law.

Despite this court decision, lawyers Antonov, Kalmykov, Mikhailov, as well as the defendants themselves, made repeated statements in the presence of jurors that the identification protocol for Orlov and other evidence of the prosecution were falsified, their confessions were obtained under torture. These remarks were stopped after the prosecutor's objections and the court's comments, after which the lawyers entered into polemics with the prosecutor, with the court, declaring that the court was biased. He believes that the negative meaning of the remarks influenced the formation of the jury's belief in the innocence of the defendants, which influenced their answers.

Olenev said that pressure was put on him, that he was ready to confess to the crucifixion of Christ. In response to the lawful remarks of the presiding judge, the defense argued that the court and the prosecutor were concealing the truth from the jury, that the case was of an ordered nature, that the presiding officer had taken the position of the prosecution.

In violation of the requirements h. 7 Article. 335 of the Code of Criminal Procedure of the Russian Federation, lawyers Antonov, Kalmykov and Mikhailov repeatedly raised factual circumstances that were not established by the jury for discussion before the jurors, allowed references to unexamined evidence, and examined positive data about the identity of the defendants.

These violations had an impact on the jury's freedom to assess evidence.

The petition of the prosecution to replace lawyer Antonov with another defense counsel in connection with disobedience to the orders of the presiding judge was unreasonably rejected.

Relatives and acquaintances of the defendants, through shouting, also influenced the jury. Throughout the trial, articles about the innocence of the defendants were published in the weekly newspaper. The newspaper with the above publications was distributed in the courtroom, but the jurors hid the fact that they were familiar with the publications.

Questions were put incorrectly by the chairman. In questions Nos. 3, 8, 13, 18, the presiding judge allowed formulations that did not support the accusation by the prosecution.

At the hearing, the public prosecutor refused to accuse the defendants of having a preliminary conspiracy to deprive the victim of life. In his parting words, the presiding judge drew the attention of the jurors to this, however, when formulating questions, he pointed out that it was proved that the defendants had committed actions against Epassac after they had agreed to deprive him of his life. After the public prosecutor's remark on the wording, the presiding judge formulated the question sheet without taking this remark into account. The remark of the public prosecutor about the cumbersomeness of the questions was also left without attention. He believes that the jurors did not understand the content of the questions, which influenced their answers. The jurors were not supposed to answer questions No. 3, 8, 13, 18, but they did vote and answered these questions. He believes that the indication in the question sheet that there was a preliminary agreement to deprive the victim of the life of the victim misled the jury.

He considers the committed violations of the law to be significant, entailing the abolition of the sentence.

In objections to the cassation submission of the public prosecutor, Gromov Yu.B., Orlov V.A., lawyers Kalmykov N.I., Anitonov A.V., Mikhailov V.V., Drobyshevskaya T.P., were acquitted. they ask to leave it without satisfaction, and the sentence - without change.

After checking the case materials, discussing the arguments of the cassation presentation and objections, the judicial board believes that the verdict should be canceled and the case sent for a new trial on the following grounds.

According to part 2 of Art. 385 of the Code of Criminal Procedure of the Russian Federation, if during the consideration of the case there were violations of the criminal procedure law that affected the answers of the jurors to the questions posed to them, the acquittal delivered on the basis of the acquittal of the jurors, upon the proposal of the prosecutor, is subject to cancellation.

In accordance with Part 6, Part 7 of Art. 335 of the Criminal Procedure Code of the Russian Federation, if during the trial a question arises about the inadmissibility of evidence, then it is considered in the absence of jurors.

During the judicial investigation in the presence of jurors, only those factual circumstances of the criminal case, the proof of which is established by the jurors in accordance with their powers, provided for by Art. 334 Code of Criminal Procedure of the Russian Federation.

These requirements of the law are violated by the defense in the present case.

As follows from the protocol of the court session, during the interrogation of witnesses, the defendants, the lawyers tried to find out from them questions about the use of unlawful methods of conducting investigation against the defendants, that is, issues related to the admissibility of evidence that are not subject to consideration in the presence of jurors.

During the interrogation of the defendant Olenev, the latter, answering a question from lawyer Mikhailov about the reasons for the discrepancies in his testimony, stated that at the time of his interrogation during the preliminary investigation, he had confusion in his head, he didn’t care what to say and write, he would have confessed to the crucifixion of Jesus Christ.

In connection with these testimony, defendant Olenev was reprimanded by the presiding judge, and it was explained to the jurors that they should not take into account the information presented in this answer.

Despite this remark, lawyer Mikhailov continued to clarify the circumstances of Olenev's interrogation, asking him the question: "Tell me, how were these statements obtained?"

The presiding judge removed this question and explained to the lawyer that in the presence of jurors, questions relating to the course of the investigation of the case are not examined.

In response to this remark, lawyer Antonov asked the presiding judge to refer to the norm of the law, which does not allow the jury to investigate these issues.

Lawyer Antonov was reprimanded for arguing with the chairman, after which he, in violation of the requirements of Part 7 of Art. 335 of the Code of Criminal Procedure of the Russian Federation again continued to clarify the circumstances of his interrogation from the defendant Olenev, asking him the question "What did you mean when you answered the question of lawyer Mikhailov that you would confess to the crucifixion of Jesus Christ?".

This question of lawyer Antonov was removed and he was warned about the possibility of applying measures against him under Part 2 of Art. 258 of the Criminal Code of the Russian Federation.

Immediately after this remark, lawyer Mikhailov asked the defendant Olenev whether he knew anything about the beating of other defendants, who was also removed by the presiding judge, and lawyer Mikhailov was warned about the application of measures against him under Part 2 of Article 258 of the Criminal Procedure Code of the Russian Federation.

During the interrogation of the witness Orlov - the father of the defendant Orlov, the lawyer Antonov also found out whether any pressure was put on his son.

The question of the use of violence against the defendants was asked by lawyer Antonov and witnesses Pavlik and Burmin.

The same question was clarified by the lawyer Kalmykov during the interrogation of the defendant Gromov.

All these questions were removed by the presiding judge and it was explained to the lawyers that in the presence of jurors, questions about the course of the investigation of the case are not examined.

During the court session, the lawyers were repeatedly explained the peculiarities of considering cases with the participation of jurors.

Despite these clarifications, in the debate, the defense challenged the admissibility of the evidence examined in the trial and referred to evidence that was not examined in the trial.

In particular, the lawyer Antonov, speaking in the debate, questioned the admissibility of the testimony of the witness Larina, who was interrogated in court in compliance with the requirements of Part 5 of Art. 278 of the Code of Criminal Procedure of the Russian Federation in conditions precluding her visual observation, and the protocol of identification of the defendant Orlov by her.

Analyzing the testimony of the witness Larina, the lawyer stated: "The prosecution could not provide any justification for the fact that this witness was in danger, her concealment of data, the interrogation of the witness in the next room allows us to say that the witness ..." (vol. 10 case files 215).

After these words, the presiding judge interrupted lawyer Antonov, explained to the jurors not to take into account this statement of the lawyer and reminded them that the interrogation of a witness under a pseudonym and outside visual observation is legal.

Despite this remark, lawyer Antonov continued his speech and stated: “This suggests that the witness may have testified at the prompting of the investigation” (vol. 10 case file 215).

The presiding judge again interrupted the lawyer and explained to the jury not to take into account the lawyer's suggestion.

But even after this remark, lawyer Antonov, referring to the testimony of witness Morozova that Larina and Gorbachev had not seen any of the attackers, again stated: “Maybe the witness Larina, in the quiet of the office, suddenly began to assert” (vol. 10 pp. d 216).

Further, the presiding judge interrupted lawyer Antonov twice in connection with the fact that, while analyzing the record of the identification of the defendant Orlov by witness Larina, he brought to the attention of the jurors information about the progress of the identification, which is important for resolving the issue of the admissibility of evidence, and also in connection with his statement that that "the conditions under which the identification was carried out clearly pushed Larina to identify Orlov" (v. 10 case sheet 216).

The admissibility of printouts of telephone conversations was also challenged by the lawyer (v. 10 case sheet 217).

Meanwhile, all this evidence was recognized by the presiding judge as admissible, and therefore, the lawyer had the right to evaluate this evidence only from the point of view of their reliability.

In support of the defendant Orlov's alibi, lawyer Antonov referred to the fact that a police officer had conducted a survey of neighbors in Orlov's dacha, who had confirmed Orlov's alibi (v. 10 case file 217).

Analyzing the testimony of the witness Orlov, the father of the defendant Orlov, lawyer Antonov stated that he asked the investigator to interrogate him, but investigator Breido refused to do so (vol. 10, case file 217).

Assessing the printout of telephone conversations, the lawyer referred to the existing plan of the area (v. 10 case sheet 218).

However, the above circumstances were not investigated at the court session, and therefore the lawyer was not entitled to bring this information to the attention of the jurors.

In addition, lawyer Antonov stated in the debate that Orlov gave his first testimony under pressure from the investigation (vol. 1-case sheet 216).

Assessing the video recording of the investigative actions with the participation of the defendants, the lawyer announced a possible technical correction of Gerasimov's testimony, (v. 10 case file 218)

During the debate, lawyer Kalmykov, having assessed the record of the identification of the defendant Orlov by witness Larina, also stated that this evidence cannot be recognized as admissible evidence.

When evaluating the protocol for checking Olenev's testimony using video recording, the lawyer stated that "it was not the accused himself who brought him to the scene of the crime, but operational workers."

Further, in his speech, lawyer Kalmykov said in the affirmative that "the investigation went to a direct forgery and falsification of evidence."

The lawyer was repeatedly interrupted in connection with the reference to circumstances not examined at the court session (v. 10 case file 213).

Attorney Mikhailov in the debate, assessing Olenev's testimony during the preliminary investigation, also explained it by the violence used against the defendant, referring to Olenev's testimony that if others had been in his place, they "would have even confessed to the crucifixion of Jesus Christ."

The above circumstances indicate that although the presiding judge repeatedly stopped the lawyers, explaining to the jurors not to take into account their statements, however, due to the many such violations committed by the defense in the court session, the jurors were unlawfully influenced, which, as correctly asserted in the cassation submission, undoubtedly influenced the issuance of an objective verdict.

In addition, according to Part 2 of Art. 258 of the Code of Criminal Procedure of the Russian Federation, the presiding judge ensures order in the court session, and if the accuser or the defense counsel does not obey the instructions of the presiding officer, the hearing of the criminal case may be postponed by a court ruling or decision, if it is not possible to replace this person with another without prejudice to the case. At the same time, the court notifies the higher prosecutor or the chamber of lawyers accordingly.

Meanwhile, these requirements of the law during the consideration of the present case were not met.

It can be seen from the record of the court session that the presiding judge, despite the fact that the lawyers did not obey and did not intend to obey his legal orders that they should not touch on issues that are not subject to examination with the participation of jurors (admissibility of evidence, evidence not examined by the court) , was limited only to issuing comments and warnings to them and giving explanations to the jurors that they should not take into account the statements of lawyers.

Such warnings during the judicial investigation and judicial debates were issued by the presiding judge to the lawyers at least thirty (only 17 remarks were announced to the lawyer Antonov in the debates), while he had every reason to postpone the case after repeated violations of order by the lawyers in the court session.

Failure by the presiding judge to comply with the specified requirement of the criminal procedure law, the provision by the defense of unlawful influence on the jurors, which influenced the answers to the questions posed to them, is the basis for canceling the sentence and sending the case for a new trial.

Based on the above, guided by Article.Article. 378, 388 Code of Criminal Procedure of the Russian Federation, Judicial Board

determined:

the verdict of the St. Petersburg City Court with the participation of jurors of July 27, 2006 in respect of Gerasimov Andrey Vladimirovich, Gromov Yury Borisovich, Orlov Viktor Anatolyevich, Olenev Andrey Anatolyevich to be canceled. Send the case for a new trial from the trial stage to the same court, but with a different composition of judges.

Sources

• [The cassation ruling of November 2, 2006] // Official website of the Supreme Court of the Russian Federation. B.d.