Pre-trial agreement on cooperation. Special procedure for making a court decision Cooperation with a consequence under Article 366.1

If you are not a lawyer, you can hardly know that the Code of Criminal Procedure provides for softening the sentence, if the criminal signed a document on pre-trial cooperation. Only persons who expressed such a desire voluntarily taking this opportunity.

There is another important point that must be fulfilled. The fact is that the pre-trial agreement on cooperation in the criminal process can be achieved only at the stage of preliminary investigation. When the case is transmitted to court, the ability to file a petition ceases to exist. Today I will tell you how and under what conditions you can make such a document, as well as where to submit it in the future.

It should not be thought that we are talking about a standard contract that sign the accused and guilty face. Under voluntary cooperation means the interaction of the participants in the criminal process, within which certain goals are achieved by each party:

• the guilty person will be able to serve a sentence of general conditions, which is guaranteed by law;
• the defense of the accused is ensured in the manner prescribed by law;
• during the investigation, the guilty person gives partners of criminal atrocities.

It is important here to know that if the prosecutor refuses to satisfy the submitted petition, the wines are recognized, and in no protection it does not need. The essence of the conclusion of such an agreement is reduced to the fact that the priority officials The collection and fixation of the most complete information for each of the crimes is considered.

Under what conditions is allowed to submit a petition?

An agreement can be concluded only if there is an excited case, where there is an accused person or suspect. The purpose of signing the document is to obtain the necessary information in order to attract those criminals to which there is no such possibility. You can use this feature only if you have the following conditions:

• the criminal whose wines is obvious, promotes with a consequence, but provided that an agreement has been reached;
• there is a need to establish other perpetrators for specific atrocities;
• the person who committed a crime talks about its actions without concealing data.

The initiative under such circumstances is the guilty person, and the application itself is addressed only to the prosecutor. Defender of the perpetrator can bring this information to the prosecutor. Details on the topic notes are in the video:

How and when is a petition?

This category of affairs is considered in court (in the world or in the district, taking into account the crime was committed by the accused). The agreement will have different sections related to the authority and rights of each party. Signatures in the Agreement are put by the guilty person, a lawyer and the prosecutor, and appeal through a person leading investigation.

To initiate an event, the guilty citizen is obliged to submit a petition for the name of the prosecutor. After receiving the appeal, the investigator must accept it and verify that:

• the guilty face really owns the information necessary for the disclosure of a crime or the search for stolen property, as well as to expose the accomplices;
• such data were no longer provided by the accused during the investigative measures or not received from other sources.

After checking, the perpetrators can carry out all the necessary investigative actions aimed at obtaining the above information. When listed conditions Not executed, the prosecutor has the right to reject the received petition. For its part, the accused has the right to appeal the refusal of a court.

After signing the DS, the case of such a person is allocated in a separate production, but with the condition that this will not have a negative impact on the main proceedings and on the objectivity of the consideration of the crime.

How is the consideration of DS affairs in the judicial instance?

Such cases can be considered in court, but only in a special order. In the process, participation is obliged to take the accused and his human rights activist, as well as the accusatory party. During the proceedings, a citizen ask questions concerning whether he recognizes his guilt and whether DS is concluded. In compulsory, this person must explain what consequences may have a signed agreement.

At the end of the notes, I would like to make several small conclusions:

1. Pre-trial agreement It is the guilty person with a consequence to reduce punishment instead of reported information.
2. Only a guilty person can initiate the procedure, and the contract is signed by the prosecutor. To obtain such an opportunity, the accused is obliged to submit a petition to the prosecutor.
3. It is important that the guilty person has user-beneficial information. Only in this case is allowed by DS.
4. Such cases can be considered judicial instanceBut after the proceedings for the main crime.

Illustration: Right.ru / Oksana Ostrogorsk

Now in the State Duma is waiting for the second hearing the bill, which will prohibit a special order in grave affairs - where the accused is facing more than five years of imprisonment. But the simplified procedure for consideration will remain for those cases in which the criminal went to the transaction with the investigation. Experts note that this institute has a detrimental effect on investigators: those lines to collect evidence and force the defendants to engage in the reservations. And the security forces do not give any guarantees that fulfills the obligations. But this instrument willingly use officers law enforcementwho have become attracted criminal cases.

Weapons against "authoritative people"

"Embedded with justice" was implicitly present in the criminal process in the past century, says lawyer Bureau "Thorn" Bureau "Thorn" Regional Rating Group Group Group Criminal law Bankruptcy group × Viktor Ushakevich: "The appearance of the obey, recognition of his guilt and active assistance in the disclosure of the crime were always considered as softening circumstances." At the legislative level, it was decided to consolidate in order to become more convenient to deal with organized crime. Siloviki detained an ordinary member of the ODG and offered him in exchange for soft punishment "Pass" gang leaders.

What is a deal with the consequence

The accused recognizes the guilt and gives detailed testimony of a perfect crime and his other accomplices. In exchange for this information, he is guaranteed a softer punishment: no more than 2/3 of the maximum period, which threatens for the incriminated composition. The case of the accused will be considered in a special order without a detailed study of evidence.

At first, the novel began to apply in such matters. The first major deal with the investigation went Vyacheslav Meneyev, who is against the leader of Tambov OGS, Vladimir Barsukov-Kumarin. The information obtained allowed the security forces to prove the involvement of criminal authority to extortion 19.5 million rubles. With entrepreneurs. Barsukov-Kumarin received 15 years of imprisonment for this crime, and Meneyev was separated by a conditional period.

At the level of the Prosecutor General's Office, it was the first such deal, recalls the former investigator on particularly important cases of the TCR, and now the partner Bureau "Thorn" Bureau "Thorn" Regional Rating Group Tax consulting and dispute Group Resolution of disputes in the courts of general jurisdiction Group Criminal law Bankruptcy group × Sergey Tokarev, who was engaged in preparing it: "No one then did not know how a new institute worked and everyone was afraid. Two weeks were coordinated, but in the end of the deputy progress, Viktor Green personally approved the deal after communicating with the accused. "

Transaction for the murder

Business: In the spring of 2016, two businessmen were killed - Vladimir Savkin and Yuri Bryleva. According to the investigation, the crime committed Mehman Kerimov, who shot entrepreneurs in the car in Novorizhskoye highway. The attacker was detained, he completely recognized the guilt and explained the sensory that happened to the merchant. Allegedly Savkin did not want to give Kerimov debt in the amount of $ 500,000. The version of the security workers turned out to be a little different - the murder was organized by the Ismailov brothers: the former owner of the Cherkizovsky market Telman, an ex-employee of the MTD Vagif and Rafik, with which the killed emerged a monetary dispute. Investigators assured that Kerimov in this scheme spoke only by a hired killer.

Agreement: In the fall of 2017, the killer went to the transaction with the consequence, obliged to confirm his testimony during testing of testimony in place during full-time stakes with the defendants in the case and in court. As the lawyer Raffa Ismailova told, Marina Rusakova, for a year and a half after the murder of Kerimov recognized the guilt in his commitment, telling that Ismailov just led him to the place of meeting with Savkin. But after the attacker was charged with several more sprapers, he concluded a pre-trial agreement with a consequence in exchange for termination of criminal prosecution on other episodes. Also, the killer gave testimony that the brothers of Ismailovy allegedly involved in the murder of entrepreneurs, the lawyer explained.

The status of the case: In February last year, Kerimov sentenced to imprisonment. The case of Raffi Ismailov still considers. Telman and Vagif Ismailov are in the international wanted list. The lawyer argues that the conditions of the pre-trial agreement of Kerimov did not fulfill, although it is his words underly the accusation of Ismailov. The testimony on the spot that the killer gave, differ over time, and in court he refused to speak, referring to Art. 51 of the Constitution, adds a lawyer. In addition, a full-time bet with Ismailov never spent.

A member and other famous gang went to the transaction - "Orekhovsky". Killer Marat Polyansky told the consequence of where one of his associates is hidden, and also revealed the details of the 15 murders who committed together with accomplices. As a result, instead of life, he received 23 years in colony.

As the institute changed

• 2009: The accused had the opportunity to conclude a pre-trial agreement on cooperation.
• 2015: Sentences that were carried out in a special order when dealing with a consequence cannot be an allocation on other cases.
• 2016: The Criminal Code prescribed clearer criteria for which the investigator, the prosecutor and the court may appreciate the validity of the "transaction".
• 2018: the accused, which concluded a pre-trial agreement, received a separate procedural status for the main criminal case.

From bankers to silovikov

But gradually the transaction with the investigation began to be used in disclosure and less resonant crimes. According to the statistics of the judicial department, the most pre-trial agreements conclude accused of affairs, which are associated with drug trafficking. Ushakevich explains such numbers with several reasons. Firstly, any amount of drug entering the illegal turnover is usually part of the larger parties, in the production and supply of which many people are involved. And, secondly, such crimes are more likely to leave traces behind them.

No less popular discussed institute and economic compositions. So, in the case of the embezzlement of 113.5 billion rubles. Verprombank for a deal with the investigation went ex-president of the Larisa Marcus's credit organization and its former deputy - Ekaterina Glushakov. They told the investigators that co-owner of Bank Georgy Bedjamov was organized by the crime. The court sentenced Marcus to nine years of imprisonment, and Glushakov - to four. Bedjamova announced international wanted list. The pre-trial agreement took place in the director Kirill Serebrennikov, who was accused of fraud by 133 million rubles. The chief accountant of his company "Seventh Studio", Nina Maslyaeva concluded a deal with the investigation and gave testimony against his ex-head and other former colleagues. Now this business continues to consider.

Lawyer Princes and partners Princes and partners Federal ranking Group Criminal law × , Alexey Serdyuk explains that the deal with the consequence is interesting to both parties only when it comes to the most dangerous multi-episodes: "Where the law enforcement agencies clearly arise with proving." Such is the crimes. The process of proving them is the most difficult, as they usually make a group of persons with preliminary preparation, explains the former investigator on particularly important Affairs of the TCR, and now the partner SKS law office SKS law office Federal ranking Group Criminal law 49 place in revenue × , Alexey Novikov.

And in such cases, the pre-trial agreement facilitates the work of the investigators as much as possible, the expert says: "As practice has shown, nothing can be installed, not to check and not prove. About everything that you need, will tell the accused, which concluded a deal with the investigation and does not matter - there is any evidence or not. " This will be quite enough for the court.

Such a scheme helped reveal the crimes of employees of the anti-corruption head of the Ministry of Internal Affairs. Three employees of this case went to the deal with the investigation, including the former deputy head of the department Alexei Bodnar. He received 5.5 years in prison for exceeding the authority and provocation of bribes. But his head - Lieutenant-General Denis Sugobov, against which he was indicated, originally by 22 years in colony. Then she reduced him the punishment of up to 12 years.

To investigate the crime of the leadership of the Metropolitan SCR, also helped the pre-trial agreement, which was concluded by the former deputy chairman of this department Denis Nikandrov. High-ranking security workers were accused of receiving $ 1 million for mitigating the charges and exemption from custody of the criminal authority of Zecharia Kalashov. Nikandrov voluntarily told all the details of this crime, for which he received only 5.5 years of colony and was already released on par. Another His accomplice received a tougher punishment: Colonel Skr Mikhail Maksimenko was sentenced to 13 years in prison.

Transaction of the employee of the FSB.

Case: In early 2017, Tyumen was detained by a gang of silovikov, where the personnel officers of the FSB were. According to the investigators, members of the group killed taxi drivers to kidnap their cars, and even straightened with migrant workers to intimidate local entrepreneurs who "laid tribute." Crimes were committed for eight years, during this time seven murders turned out to be at the expense of intruders.

Agreement: One of the active participants of the Gang - Lieutenant FSB, Alexei Korotkov, went to the transaction with the investigation. He pressed and called his accomplices. In exchange for these testimony, the lifelong deprivation of liberty escaped, and received 24 years colonies.

Business status: Two other gang participants received 12 and 25 years of imprisonment for three and six killings, respectively. Another accused is declared international wanted list. The leader of the grouping, captain of the FSB, Vladimir Gilev committed suicide with him in the SIZO.

Benefits of the transaction with a consequence

Realizing the effectiveness of the institution under discussion, investigators began to use it in a variety of compounds. Moreover, the cooperation agreement can be concluded even if only one episode and one accused explains the managing partner of the EMPP EMP. Federal ranking Group Arbitration Proceedings (Middle and Small Disputes - Mid Market) Group Capital markets Group Group Criminal law 20th place By revenue on a lawyer (less than 30 lawyers) 48 place in revenue × Sergey Egorov. It can be applied even on cases of careless crimes and other acts lightweightwho are generally not related to organized criminal activity, says Dmitry Danilov from Near and partners Near and partners Federal ranking Group Criminal law × . So, in case No. 1-17 / 2013, the deal with the consequence concluded a convict, which was accused of ordinary hooliganism. And in Business No. 1-162 / 2016, the pre-trial agreement was signed with a person involved on an environmental crime.

Moreover, a consequence every year is less and less in charge of himself by checking and proving the circumstances that the "transactions report", satisfying only by these testimony, is indignant by lawyer, partner Romanov and partners Romanov and partners Federal ranking Group Criminal law × Matvey Protasov. According to him, there are no cases when the investigation is independently preparing for potential "pre-firsters" of testimony, consent to which is a prerequisite for cooperation.

The design of the institution of the pre-trial agreement was initially vicious. The volume of obligations that the accused should be excessively wide: it should not only fully talk about his fault, to indicate or issue traces of crimes and other evidence, as well as abducted, but also expose other partners, call other episodes of crimes. These latitude and uncertainty give obvious space for abuse and arbitrariness.

Vadim Kludgant, partner Pen & Paper

Vadim Kludgant, Partner Pen & Paper tells that the use of a pre-trial agreement gradually turns into the main way of "disclosure" of crimes "and" expulsion "of other accused who do not recognize their guilt. The scheme is simple: the case is directed to the court "toarder", consider it in a special order for one meeting, and then this sentence is used in the main case against other personaners. This technique continues to use, despite the formal prohibition of a similar disobey, says the clutch.

Pros from a transaction with a consequence

The investigator succeeds faster to disclose a difficult crime and collect important information about all partners.

Soft preheat measure at the investigation stage for the accused

Reduced punishment. According to Ushakevich, already at the stage of imprisonment of the pre-trial agreement will be determined by mitigating circumstances.

The possibility of appointing state protection as an important witness.

"Underwater stones" of the pre-trial agreement

At the same time, signing a cooperation agreement, the accused risks many, warns Egorov. First, his conscious indications Can be used against himself, and the sentence will be stricter. Secondly, the prosecutor may decide that the information told by the "lenderness" was not valuable for the investigation, and therefore the agreement cannot be considered fulfilled.

"Digital" without guarantees - I can characterize the institution currently internizing today. The Russian deal is seriously different from existing in other countries. The key difference is the complete revolution of the one who agrees to the transaction. Exclusively depends on the discretion of the prosecutor and the investigation, whether the accused the terms of the transaction were respected and the accused of any new information was told to investigate. Check out of the accused and his defender there is no possibility.

Vyacheslav Apple, Managing Partner Apples and partners Apples and partners Regional Rating Group Criminal law 14th place By number of lawyers 31th place in revenue ×

For refusing to be accused of fulfilling a pre-trial agreement, no sanctions in law are provided. The proceedings will be on the case in general, and all the obligations of the prosecutor about the use of mitigating circumstances in the appointment of punishment are lost by force, says Ushakevich. And cases of failures are extremely rare, Svetlana Chirkova, senior lawyer Egorov, Puginsky, Afanasyev and partners Federal ranking Group Antimonopoly law Group Arbitration proceedings (large disputes - High Market) Compliance Group Group Corporate Law / Merger and Absorption Group International legal proceedings Group International Arbitration Group of marine law Group Resolution of disputes in the courts of general jurisdiction Group Capital markets Group Family / hereditary right Group Insurance law Group Labor and migratory law Group Criminal law Group Office of private capital Group Pharmaceuticals and healthcare Group Financial / Bank law Group Environmental law Bankruptcy group Group WED / Customs Law and Currency Regulation Group PPP / Infrastructure Projects Group Intellectual property Group Commercial Real Estate / Construction Group Tax consulting Group Tax disputes Group Natural Resources / Energy Group TMT Group Transport law Group Digital economy 1 place in revenue 1st place By number of lawyers 1st place By revenue on a lawyer (more than 30 lawyers) × : "If the accused fulfilled or performs" his "part of the agreement, then he makes no sense to refuse him. After all, this, with a large probability, will lead to an indictment and, probably, much more strict punishment. Especially if he is accused of aggregate grave crimes" At the same time, the court himself cannot cancel or terminate the agreement: he does not have such a competence. The court only checks that from the words of the state procurement the defendant fulfilled the terms of the agreement, which he concluded voluntarily and with the participation of a lawyer explains Egorov.

But in some cases, the court can return to the prosecutor's office to eliminate errors due to incorrectly executed transaction with a consequence. In case No. 10-10501 / 2019 issued such a decision due to the fact that in the pre-trial agreement did not indicate information about the accused and did not describe the actual circumstances of the crime incriminated to him. Case number 10-5438 / 2019 had to be returned, since the accused did not explain his rights when concluding the transaction. And case number 10-20303 / 2017 court sent back to the prosecutor's office, since indictment They did not put references to the accomplices of the accused, which he was outlined.

Correspondence consequences

The verdict of the court will not be able to appeal on the basis that its conclusions do not correspond to the actual circumstances.

Often you have to testify on your friends, buddies, or even the best friends.

In the direction of the case, the prosecutor can decide that the accused did not fully fulfill the terms of the agreement, and the supervisory authority will abandon its execution.

A simplified judicial procedure does not always work for the benefit of the accused. More than once there were cases when the participant of the pre-trial agreement condemned, and those accomplices, which he helped to endure, did not recognize his guilt and received an exclusive sentence, said Ushakevich.

One of the main minuses of the institute of Ushakevich has called the provisions of their accomplices of their accomplices or not involved: "As a consequence, it is necessary, then subscribed." According to him, thus the organizers turn into performers and vice versa: "A check such testimony has no time." A similar scheme is also used in cases where the investigation has a number of assumptions about the guilt of other partners, but there are no direct evidence, explains Danilov: "Unscrupulous investigators these assumptions are reflected in the interrogation protocol who concluded the deal. And he, being under pressure from law enforcement officers, sign them. "

According to one of my deeds, the dealer has signed the testimony, according to which the loan 250 million rubles transferred to the accounts of one-day acts controlled by it. In a special order, she received 3 years in colonies. But when familiarizing with the discharge on the basis of the case file, it turned out that no ruble from this loan fell into the one-day detention. The point in relation to other employees was returned to the resurrection.

Matvey Protasov, partner AB Romanov and partners

Chief flaw

But the main problem is the accusation for its part does not give any guarantees that the entire conditions of the pre-trial agreement itself will fulfill. Demyan Moskvin faced with this problem - the case of the case of the crimes of the former Komi leadership. He published audio records of the conversation with the investigator. An employee promised the accused in exchange for a deal with the consequence of a suspended period, and in the event of a refusal promised to excite another case against Moskvine and translate into the SIZO instead of home arrest. The accused agreed, but a month after that he received six years of the colony of a strict regime because of the tightening of the fabul accusation. After such a sentence, the "leisureman" refused the transaction, and the Moscow City Court canceled the decision in his case, returning it to a new consideration. Moskvin did not wait for a re-decision and disappeared. Now he is wanted.

Transaction under pressure of the investigator

Business: In 2018, the security forces detained 10 people: Peter Karamzin, Dmitry Poletaeva, Vyacheslav Kryukov, Maxim Roshchina, Sergey Gavrilova, Pavel Rebirovsky, Ruslan Kostylenkova, Rustam Rustamova, Anna Pavlikova and Maria Dubovik. The case against them was opened under Part 1 and 2 Art. 282.1 of the Criminal Code ("Organization of the Extremist Community and Participation in Him"). The investigation believes that the participants created the organization "New Greatness", which planned "non-alternative participation in popular uprisings, revolutionary actions, in a collision with representatives of the regime operating in Russia." Defenders argue that the association appeared on the initiative of the implemented representatives of law enforcement agencies, it was they who suggested to the participants the idea of \u200b\u200bcreating an organization, thereby pushing the violation of the law.

Agreement: Rebbovsky with Rustamov recognized the guilt and went to the transaction with the investigation. The first received 2.5 years of the real term in the colony of the general regime, and the second sentenced to two years conditionally. Taking a witness to the accusation in the process over other defendants, Rebirovsky said that under the pressure of the investigator, who promised him in exchange for them a suspended period. The convict also said that the ideas of creating an organization, buy weapons and conduct training on shooting, belong to some Russian Ruslan Davidov, who turned out to be an informant special services. Now he disappeared, and his location is unknown.

Business status: In early October, the Moscow City Court at the request of the Prosecutor's Office to the Rebbovsky due to the fact that he violated the conditions of the pre-trial agreement and did not confirm his testimony during the consideration of the main case. The case was sent to a new consideration back in. The process for other personaners is still continuing.

Applers says that such "deceptions" from investigators are not uncommon. The expert over the past two years has repeatedly encountered the situation when the "toarder" at the end of the investigation makes the charge twice as much as it was originally: "On the basis of the testimony that he provided in the framework of the transaction with the investigation." The testimony from the case will not throw out, and the only chance to maintain the "leisureness" - to confess and in a new accusation, adds a lawyer: "In such circumstances, it is not necessary to say that there is any agreement that all the conditions agreed at all." Given this situation, the clutch is confident that it will be fixed only under the condition of real equality of the parties of such a transaction. To do this, we need to register exhaustive, clear and fully transparent mutual obligations of the participants of the agreement and the conditions of its termination, summarizes the lawyer.