Legal safeguards against involuntary criminal confessions in Poland and Russia

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IntroductIon
The issue of involuntary criminal confessions is a complex one and can be addressed on different levels including legal, administrative, psychological, and forensic.There have been many publications concerning the psychology of confessions, which provide some valuable insights 3 .Researchers are drawing attention to the fact that a confession is the most powerful piece of evidence the prosecution might possess principally because it appears very unlikely that anyone would willingly confess to  Interest, v. 5, n. 2, p. 33-67,  2004; RUSSANO, Melissa B.; MEISSNER, Christian A.; NARCHET, Fadia M.; KASSIN, Saul M. Investigating True and False Confessions Within a Novel Experimental Paradigm.Psychological Science, n. 16(6), p. 481-486, 2015.a crime he or she did not commit 4 .Suspect's confession can be a fertile source of new evidence, especially the one known only to the actual perpetrator.It also helps to build a stronger case against the defendant in a situation where there is only circumstantial evidence.In some criminal cases, such as no-body homicides and wild-land arsons, it is extremely difficult to prove the defendant's participation and guilt without his willing full cooperation.Not surprisingly, in the era of advanced forensic techniques, police officers are still keen to obtain suspect's confession or other incriminating statements from those suspected of committing criminal offences 5 .To achieve this goal, a variety of tactics is being used, some of them highly controversial and some even illegal.Interestingly, the problem of unlawful duress appears to affect not only the developing countries but most western states as well 6 .
It should be noted that the prohibition of torture, inhuman or degrading treatment is a bedrock principle of international law.The majority of the world's countries have ratified the United Nation's Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984.In Europe, the European Court of Human Rights has developed an impressive body of the case-law concerning the issue of improper police compulsion.Following the wording of Article 6 of the European Convention on Human Rights, the Court, although not in the expressed terms, obliges all member states to adopt legal safeguards against improper police compulsion, including exclusionary rules 7 .Besides, some member states 4 RASSIN, Eric; ISRAËLS, Han.False confessions in the lab: a review.Erasmus Law Review, v. 7, n. 4, p. 219, 2014.5 MOSCATELLI, Lívia Yuen Ngan.Considerações sobre a confssão e o método Reid aplicado na investgação criminal.Revista Brasileira de Direito Processual  Penal, v. 6, n. 1, p. 368, 2020; MCCONVILLE, Michael; BALDWIN, John.The role of interrogation in crime discovery and conviction.The British Journal of Criminology, v. 22, n. 2, p. 165, 1982; GUDJONSSON, Gisli H.; PEARSE, John.Suspect Interviews and False Confessions.Current Directions in Psychological  Science, v. 20, n. 1, p. 33-34, 2011.6   Human Rights Watch.World Report 2020, Available at: <https://www.hrw.org/sites/default/files/world_report_download/hrw_world_report_2020_0.pdf>.Access on: September 10, 2020.

7
In this article the terms "police coercion" and "improper police impulsion" are used as umbrella terms covering physical torture or other forms of have incorporated some of the pertinent forensic recommendations into domestic law.In Russia, for example, a special investigative procedure called "verification of the evidence on the spot" was introduced in 2001.The law also limits the length of interrogations forcing the interrogators to take regular breaks.In the Polish law of criminal procedure, it is forbidden to substitute the testimony of the accused by the contents of documents or notes -the rule, which ensures the priority of firsthand, direct evidence8 .
In this article, we analysed legal principles and restrictions regarding involuntary testimony in two European countries -Poland and Russia.Each country appears to apply a different approach to the issue of police coercion.In Russia, the law of criminal procedure limits judicial discretion in this area by providing detailed rules concerning police interrogations, the verification of confession statements and even the evidentiary value of criminal confessions.In Poland, courts have wider discretion regarding this type of evidence, including the handling of the claims regarding improper police compulsion.However, in both countries, there have been known cases of police misconduct concerning not only crimes but also petty offences.
The aim of the article was to determine whether the existing legal protections could provide an effective remedy to the problem of improper police compulsion and whether these legal provisions are properly implemented and enforced.Based on this aim, we stated the research question as follows: -what is the general attitude toward improper police compulsion in international and European law? -what kinds of legal safeguards are in place to protect individuals from improper police compulsion in Poland and Russia?How these legal provisions are implemented and complied with in practice?improper compulsion used by the key "players" of the lowest level of the criminal justice system, such as police officers and law enforcement personal of other investigative agencies, to obtain criminal confessions and other incriminating statements.-what should be done to improve protection against improper police compulsion from the legal side?
The observations and conclusions presented in the article were based on the analysis of relevant legal provisions, case-law and legal doctrine, as well as the authors' own professional experience as defence attorneys.So, in drawing conclusions and proposing legal changes, the authors were aware of the fact that their judgements might have been somewhat biased.

legAl PrIncIPles regArdIng ImProPer PolIce comPulsIon In InternAtIonAl And euroPeAn lAw
The issue of improper police compulsion has been part of a perennial debate on the complex relations between human rights and police investigative efficiency for many years.Pertinent legal standards were set in 1948 by the United Nations' Universal Declaration of Human Rights9 , the European Convention on Human Rights and Fundamental Freedoms (1950)10 and later specified in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the United Nations General Assembly on 10 December 1984 (Resolution 39/46)11 .
Although the Universal Declaration of Human Rights is not a binding international treaty, all states are bound to respect its provisions.Article 5 of the Universal Declaration expressly prohibits the use of torture or cruel, inhuman or degrading treatment to obtain either information or a confession.It does not, however, specify the behaviour that constitutes torture.The definition of torture can be found in Article 1 of the Convention against Torture of 1984, which provides that the term "torture" means "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity".It does not, however, include pain or suffering arising only from, inherent in or incidental to lawful sanctions.The Convention against Torture obliges all states to ensure that "any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made" (Article 15 of the Convention against Torture).
The European Convention on Human Rights addresses the issue of improper police compulsion in several articles: Article 3 -Prohibition of torture, Article 5 -Right to liberty and security, and Article 6 -Right to a fair trial.In its applicable jurisprudence, the European Court emphasizes that the right to remain silent when being questioned by the police and the privilege against self-incrimination are recognised international standards laying "at the heart of the notion of a fair procedure under Article 6"."By providing the accused with protection against improper compulsion by the authorities these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6" 12 .In a milestone case of Gäfgen v. Germany, the Court held that "even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned"13 .This restriction, however, does not necessarily extend to the evidence derived from evidence obtained by torture, inhuman or degrading treatment.Despite the Court has condemned the use of such evidence, their use is allowed if they are not crucial for the case 14 .
In the context of improper police compulsion, the Court repeatedly highlights the importance of the right to legal assistance.In several landmark decisions, i.e.Salduz v. Ibrahim and Others 15 , Simeonovi v. Bulgaria 16 , the Court stated that prompt access to a lawyer is a fundamental guarantee against coercion and ill-treatment of suspects by the police during custodial interrogations.As a general rule, each suspect should be granted access to legal assistance from the moment there is a "criminal charge" against him within the meaning of the Convention.The Court stressed out that "a person acquires the status of a suspect calling for the application of the Article 6 safeguards not when that status is formally assigned to him or her, but when the domestic authorities have plausible reasons for suspecting that person's involvement in a criminal offence" 17 .
Nevertheless, in certain exceptional situations the access to a lawyer can be restricted.These restrictions must be temporary and justified by the circumstances of the case.In the case of Beuze v. Belgium 18 the Court's rhetoric slightly changed.The Court expressed an opinion that the restriction of the right of access to a lawyer during the first police interrogation without compelling reasons could be counter-balanced by other legal safeguards, thus, the fairness of the trial could be, nonetheless, preserved.Some commentators suggest that by exalting the restrictions of the right to legal assistance, the Court has created better conditions for the police and other law enforcement agencies at the crucial initial stage of criminal proceedings 19 .The Court's later judgements demonstrate, however, that it does not depart from the earlier established line of precedent concerning the issue of improper police compulsion.In the Court's opinion, the use of statements obtained following a violation of Article 3 of the Convention automatically deprives the proceedings of fairness and violates Article 6.This rule applies both to self-incriminating statements made by the accused and to witness statements obtained in violation of Article 3 20 .
2. physical or psychological pressure was applied to obtain material evidence or statements 3. subterfuge was used by the authorities to elicit information that they were unable to obtain during questioning21 .
It should be noted that this classification generally coincides with the situational factors associated with coerced criminal confessions 22 .
Concerning the admissibility of illegally obtained evidence, the Court emphasizes its subsidiary role pointing to the fact that the Convention does not lay down any rules on this issue.The Court, however, repeatedly stresses the importance of the overall fairness of the trial, which, in the opinion of the Court, should be assessed in the light of the following factors: -whether the defence was allowed to challenge the authenticity of the evidence and to oppose its use; -the quality of the evidence in question, as well as the circumstances in which it was obtained and whether these circumstances cast doubt on its reliability or accuracy; -circumstances in which it was obtained and its reliability or accuracy; -whether the evidence in question was or was not decisive for the outcome of the criminal proceedings 23  The Court generally differentiates two types of cases: the ones, where the infringements of the rights protected by the Convention could be "repaired" and the ones, where such infringements are "unrepairable" concerning, for example, the use of torture or other inhumane treatment (Article 3 of the Convention) or the deprivation of legal assistance.In the case of El Haski v. Belgium 24 , the Court found that the impugned statements later used against the applicant had been obtained in Morocco using treatment prohibited by Article 3 of the Convention.According to the Court, the domestic courts were required not to admit them in evidence unless they had first verified, that they had not been obtained in such manner.In its judgement, the Court once again underlined the significance of the guarantee provided for in Article 3 holding that irrespective of the kind of ill-treatment whether it is torture, inhuman or degrading treatment the proceedings as a whole become automatically unfair.The Court expressed the opinion that this is also true in the case, where the prosecution uses real evidence obtained as a direct result of torture or inhuman treatment regardless of whether such evidence was decisive for the outcome of the proceedings.It would be unfair to impose on the applicant a burden of proof that went beyond the demonstration of a "real risk" that the evidence in question had been obtained in breach of Article 3 of the Convention.The Court also paid attention to the fact that the allegations of torture are often difficult to prove since it is practised in secret by experienced interrogators who were skilled at ensuring that it left no visible signs on the victim."All too frequently, those who were charged with ensuring that torture did not occur -courts, prosecutors and medical personnel -were complicit in its concealment"."In a criminal justice system where the courts were independent of the executive, where cases were prosecuted impartially, and where allegations of torture were conscientiously investigated, one might conceivably require a defendant to prove to a high standard that the evidence against him had been obtained by torture.However, in a criminal justice system which was complicit in the very practices which it existed to prevent, such a standard of proof, was wholly inappropriate" ( § 86).
In our opinion, these interpretations require the adoption of effective legal mechanisms to enhance the judicial response to the allegations concerning the use of torture or other unlawful investigative techniques.
It should be noted that in our analysis of European law, we intentionally omitted several directives directly or indirectly related to the issue, such as the Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings 25  by Poland 29 , so it may be assumed that the Polish law has already met their requirements.

legAl sAfeguArds AgAInst coerced crImInAl confessIons In PolAnd
In the Polish law of criminal procedure, there are several legal provisions addressing the issue of improperly compelled testimony.Firstly, there are rules on the admissibility of evidence.Under Article 168a of the Polish Code of Criminal Procedure of 1997 30 (CCP), a piece of evidence cannot be considered inadmissible solely on the basis that it was obtained in violation of the rules of the criminal procedure or through criminal offence unless the evidence in question was obtained by a public official as a result of a murder, intentional infliction of bodily harm or unlawful deprivation of liberty.Following the actual wording of this legal norm, evidence obtained in violation of procedural rules is admissible if such a violation is the only known defect.
It should be noted, however, that in the Polish legal doctrine and case-law the provisions of Article 168a CCP are being interpreted in extremely different ways.Some scholars suggest that the content of this article should be interpreted strictly, following its literal meaning.So, evidence obtained with a violation of the procedural rules or even through criminal offence should be admissible unless there is an indication that a public official committed murder, intentional infliction of bodily harm or unlawful deprivation of liberty 31 .Others believe that the content of Article 168a CCP must be interpreted broadly, in the context of other legal norms including the provisions regarding rights of the case participants and fundamental principles of the Polish law 32 .Some researchers say that the provisions of Article 168a CCP are needed to be interpreted in the light of the Polish Constitution and European law.Evidence obtained with a violation of procedural rules would be inadmissible if a public official violates constitutional rights and guarantees 33 .In the Polish case-law, it is recognized that the provisions of Article 168a CCP should not be used as a way to give validity to illegally obtained evidence in a situation when procedural violations undermine the overall fairness of the proceedings in the light of Article 6 of the European Convention 34 .It should be noted that this opinion generally coincides with the abovementioned European Court's approach to the issue of unlawfully obtained criminal evidence.
In the Polish case law and legal doctrine, prevails an opinion that Article 168a CCP does not explicitly forbid the use of the evidence derived from illegally obtained evidence 35 .Some authors, however, are of opinion that derived evidence must be considered inadmissible unless it was not decisive for the outcome of the proceedings and the defendant was allowed to challenge the authenticity of the evidence 36 .
Secondly, under § 5 CCP, it is illegal to influence the statement of the questioned person through coercion or unlawful threat.Furthermore, the testimony obtained in this way cannot constitute proof (Article 171 § 7 CCP).In case law and legal doctrine, violations of this type are unanimously recognized as "unrepairable" 37 .For example, in the light of Article 171 § 7 CCP, it would be illegal to interview the police officer about the content of suspect's testimony obtained in violation of Article 171 § 5 CCP 38 .It also follows from settled case-law that the voluntariness of testimony must not be infringed 39 .There are, however, several contentious issues.First of all, the rule of Article 171 § 7 CCP refers only to procedural interrogations conducted under the provisions of CCP.Nonprocedural police questioning, which often precedes procedural interrogations falls outside the scope of this article.It should be noted that it is not required by law to accurately record the testimony provided by an interviewee.
The result of the police questioning must be summarized in the note the police officer made afterwards.The interviewee cannot familiarize himself with the content of this note, raise objections or demand correcting its content.It is worth noting, however, that Polish courts, when dealing with the allegations concerning improperly compelled testimony, often analyse the circumstances of the preceding police questioning 40 .
Besides, it appears that Article 171 § 7 CCP does not cover the behaviour of third parties.The information obtained by a private citizen through torture or another form of unlawful duress falls outside the scope of Articles 168a and 171 § 7 CCP.It could be, therefore, used as evidence regardless of its reliability 41 .
Another shortcoming relates to the way the defendants' claims regarding the use of improper interrogation techniques are being addressed by Polish courts.The response to the allegations concerning police coercion is often too formal.After interrogating the claimant, the court often refers the issue to the public prosecutor, who conducts an internal investigation and draws an official report.Since there are usually no physical traces of police misconduct, the investigation usually concentrates on testimonial evidence, which in such cases could be corrupted and highly unreliable.Part of the problem is that such claims are often regarded as a defence strategy aiming to raise doubts about the prosecution case, especially in the situations where the defendant previously confessed either fully or partially.With this in view, courts usually set an inadequately high standard of proof.Besides, the burden of proof in such cases is often incorrectly placed on the claimant instead on the side of the prosecution.Only a few cases where courts faced this type of claims have been publicized so far 42 .However, this highly questionable procedure of handling the allegations of police misconduct has never been officially criticized by the Polish higher-tier tribunals.Therefore, it may be assumed that this inefficient way of handling such claims is known and silently approved.The relation between Article 168a and Article 171 § 7 CCP is another intensely discussed topic.W. Jasiński concludes that the provisions of Article 171 § 7 CCP should be treated as lex specialis prevailing over the rules of Article 168a CCP 43 .Other scholars suggest, however, that within the current legal framework the provisions of Article 168a CCP could be interpreted in such a way that they overweight the provisions of Article 171 CCP.Therefore, these authors argue that there is a risk that the evidence obtained with procedural including the ones provided for in Article 171 CCP would be allowed to use in a trial 44 .It is worth noting that the possibility of this misinterpretation of Article 168a CCP was the subject of the complaint of the Polish Ombudsman addressed to the Constitutional Court in 2016 45 .It was, however, later withdrawn on the ground of illegitimacy of the Court's current composition.
Thirdly, as defined in Article 174 CCP, the contents of documents and notes shall not be substituted as evidence for the explanations of the accused or the testimony of witnesses.This is an important guarantee of the defendant's right to remain silent and safeguard against the substitution of his or her direct testimony.It should be noted, however, that such documents may be used as a source of information about the new evidence.Besides, it is not uncommon for criminal suspects to confess to friends, family members or medical personal.Their testimony can be later used as evidence against the defendant.It must also be noted that the rule of Article 174 § 7 CCP applies only to the testimony obtained in the course of procedural interrogations.So, for example, the testimony of the police officers who executed an arrest warrant about the defendant's alleged admissions would be admissible.The testimony of the defendant's cellmates is also allowed despite serious concerns over their use in criminal cases 46 .
Fourthly, every person suspected of a crime has a right to counsel of his or her our choice.Several conditions should be met, however, to apply for a legal aid lawyer.First of all, legal aid is being provided for indigent defendants whose cases fall within the scope of cases for which defence is mandatory.Under Article 79 CCP, a suspect or the person accused of a crime must have defence counsel if he or she is (1) minor, (2) deaf, dumb, or blind, (3) insane, (4) has no command of the Polish language.
The defendant must have a defence counsel when the court deems that necessary because of circumstances impeding the defence.Also, according to Article 80 CCP, the person accused of a crime must have defence counsel in proceedings before a Voivodship Court as a court of the first instance if he or she is accused of a felony -the crime with the sentencing limit of more than three years of imprisonment.If the defendant's case does not fall into any of those categories, he or she can receive legal aid on the motion based on indigence under the condition that the lack of means would be "adequately demonstrated" (Article 78 CCP).The law, however, does not specify how an indigent person is to "adequately demonstrate" his or her inability to bear the costs of defence, which often limits the access to legal aid.
It should be noted that some organizational impediments are affecting the exercising of the right to legal counsel in the case of the detained suspects.Often, in police stations, no information on the local criminal lawyers and their contact phone numbers is provided.It also happens that the attorney meets his client for the first time after official charges have been pressed.Needless to say that at this stage, it is usually too late for the lawyer to intervene and prevent the use of questionable interrogation techniques.Besides, the investigative officers are allowed to proceed with the interrogation of detainees without the defence counsel of their choice (Article 301 CCP).In case-law, there is an opinion that evidence obtained as a result of the suspect's interrogation conducted without the presence of a lawyer must be considered admissible unless other circumstances, i. e. the ones listed in Articles 168a and 171 § 7 CCP, would undermine its admissibility 47 .
An important guarantee is provided by Article 87 CCP, which allows a witness to be represented by the lawyer of his or her choice during the police interview.The presence of a lawyer reduces the likelihood of misconduct on the part of the police.However, under Article 87 § 3 CCP, the prosecutor may refuse to allow the lawyer to participate in the proceedings if he deems that the interests of the witness do not require such legal representation.The law does not define the situations where such representation could be unnecessary.In our opinion, this provision contradicts the provisions of Article 6 (3) of the European Convention by favouring the interests of the prosecution.It appears that this tendency to favour the prosecution dominates in the Polish procedural law.Within the current legal framework, defence attorneys have a rather limited possibility to actively participate in preliminary proceedings -the model criticized by many Polish scholars 48 .

legAl sAfeguArds AgAInst coerced crImInAl confessIons In the russIAn federAtIon
The Russian Code of Criminal Procedure of 2001 49 (CCP RF) contains several legal protections against coercive police practices.Firstly, according to Article 75 (1) CCP RF, the proof obtained with a violation of the demands of the Code shall be qualified as inadmissible.
The inadmissible proof is deprived of legal force and cannot serve as a basis for the accusation or be used for proving any of the circumstances relevant to the criminal case.Some scholars suggest that the rule laid down in Article 75 (1) CC RF can be applied only to the evidence which incriminates the defendant.So, evidence obtained in breach of procedural rules may nevertheless be used to prove the defendant's innocence or to establish other facts that could be beneficial for the defence 50 .
The defence can file the motion to exclude evidence based on Article 75 (1) CCP RF either during a preliminary investigation or later during a trial.It may also be filed at any time in upper-tier tribunals.If such a motion is filed during the investigation stage and the public official handling the case allows the motion, a trial court would be unable to assess this evidence.Therefore, scholars argue that, in such a case, there must be the possibility to re-examine the excluded evidence in a courtroom since the law requires criminal judges to evaluate all the evidence collected in the case 51 .Others, however, believe that the decision to exclude the illegally obtained evidence made during the initial stages of proceedings should be treated as the final.It can be, however, contested during the trial or even later in an upper tribunal if the prosecution files a respective motion 52 .In practice, the motions on the ground of Article 75 CCP RF are usually filed and examined during a trial.
According to the Supreme Court's guidelines, dealing with exclusionary motions, courts should assess the nature of the rule allegedly violated.However, no criteria have been defined to determine the significance of the violation in question.So, courts have broad discretion in deciding on the admissibility of illegally obtained criminal evidence.The Supreme Court pointed out that there should be one exception.If the evidence was obtained through the violation of the individual rights guaranteed by the Russian Constitution 53 , as would be the case, for example, if the defendant's confession was obtained by the use of torture, inhuman or degrading treatment (the right provided for in Article 21 of the Constitution), it should be declared inadmissible regardless of its content and reliability 54 .This interpretation generally follows the European Court jurisprudence concerning the issue of evidence obtained with the infringement of the rights guaranteed by the Convention.Nevertheless, the information provided by the suspect under torture or another form of coercion is allowed to use in the search for other evidence.
In practice, Russian courts are often prejudiced against the claims concerning improper police compulsion.They tend to apply inadequately high standards of proof even though the use of torture appears to be widespread across the country.In 2019, for example, Russian courts found 641 law enforcement officers guilty of exceeding their powers with the use of violence or special means -the crime penalized under Article 286 of the Russian Criminal Code 55 .The complaints regarding the use of coercive interrogation techniques are usually treated as a typical defence strategy rather than the source of information that needed to be thoroughly checked.Quite often the burden of proof in such cases is incorrectly placed on the defence party 56 .
Article 75 (2) CCP RF provides that inadmissible proof shall be evidence given by the suspect or the person accused of a crime in the course of the pretrial proceedings on the criminal case in the absence of the defence counsel, including the cases of the refusal from the council, and not confirmed by the defendant in the court.It should be noted that in Russia all criminal suspects are provided with free legal assistance to guarantee adversarial proceeding.The presence of a lawyer is considered obligatory unless a person implicitly waives his right to an attorney (Article 51 CCP RF).However, even in that case, an investigative officer may insist on the presence of a lawyer to prevent tactically motivated defence motions 57 .If the suspect cannot afford a lawyer, the one would be provided by the state under Article 16 CCP RF.It is also worth noting that a defence attorney has a broad range of procedural rights during the initial stage of the proceedings.Among the most important is the right to conduct parallel investigations including the right to appoint forensic experts and interrogate witnesses (Articles 49, 53, 86 CCP RF).
However, there is a well-known problem with the quality of free legal aid.In such cases, it is not unusual to see the ineffective and inadequate criminal defence.There are several reasons why this happens.First of all, legal aid lawyers are insufficiently paid.Since 2019, a legal aid lawyer is being paid around 2000 rubles per day, which is approximately 23 euros 58 -a very small sum bearing in mind the rapid inflation of the costs of living in Russia.For many criminal lawyers, this money is the main source of income.Therefore, they take as many cases as possible.The resulting overload concerns many legal practitioners and scholars 59 .More importantly, it is not unusual to see unethical collaboration between legal aid lawyers and police officers.To obtain more cases in the future, some lawyers deliberately ignore the interests of their clients providing erroneous legal advice or simply refusing to offer 57 CHEBOTAREVA, I.N.Otkaz podozrevaemogo, obvinjaemogo ot naznachennogo zashhitnika: pravovye pozicii Konstitucionnogo Suda RF.Advokatskaja praktika, n. 6, p. 28 -32, 2019. 58Governmental Decree on the fees paid to legal aid lawyers of December 1, 2012.Available at: <https://www.consultant.ru/document/cons_doc_LAW_138571/ >.Access on: September 10, 2020. 59SEREDNEV, V. A. K voprosu nekotoryh pričin profanacii advokatskoj deatelnosti v otecestvennom ugolovnom processe.Advokatskaa praktika, n. 3, p. 39-44, 2019; KURCHENKO, V. N. Obespecenie obvinaemomu prava na zasitu: interpretacia v sudebnoj praktike.Ugolovnoe parvo, n. 1, p. 89-95, 2019.any useful legal information which could help their clients to select the most effective defence strategy.Unfortunately, all complaints regarding such unethical and highly questionable behaviour end up in the local bar associations, which place the burden of proof on the claimants and often favour their members 60 .
Another shortcoming relates to the fact that the exclusionary rules provided for in Article 75 CCP RF do not apply to police questioning, which often takes place before an official procedural interrogation.It should be noted, however, that most complaints about police alleged misconduct concern the suspect's contacts with the police officers outside the interrogation room.
Under Article 56 CCP RF, each person suspected of committing a crime has the right to legal assistance.The investigative officers are obliged to respect this right regardless of the case circumstances and the objectives of the interrogation.If such a witness insists on the presence of a lawyer, his or her questioning should be postponed until the selected lawyer arrives.The presence of a lawyer is of particular importance in the criminal cases concerning white-collar crime where criminal suspects often maintain the status of a witness during the initial stage of the investigation.According to Article 189 CCP RF, the witness's lawyer has the right to be present throughout the interview, to ask questions and object to the questions being asked, to advice his client any time during the interview, to add remarks and objections to the interrogation written report.These provisions comply with the European Court jurisprudence regarding the legal status of the person whom the domestic authorities suspected to be involved in a criminal offence.The state, however, does not provide free legal aid in such cases.
It should be noted that under Article 191 CCP RF a child under sixteen years of age shall be interviewed in the presence of his parent or guardian unless it is against the best interests of the child.The fact that adolescent suspects are interrogated in the presence of an allied adult is very important.In 2013 the provisions of Article 45 CCP RF were amended allowing the child's legal representatives to apply for a legal 60 FRANCIFOROVA, S. Ju.Pravovye garantii dejatel'nosti advokata v ugolovnom sudoproizvodstve.Advo-katskaja praktika, n. 5, p. 14 -18, 2019.aid lawyer.This provision provides extra protection to this especially vulnerable group of case participants.The rule of Article 45 CCP RF appears to be outside the scope of the Member States' obligations arising from the jurisprudence of the European Court.There is, however, no official data on the number of criminal cases where such assistance have been provided.
Unlike in Poland, the law does not forbid the substitution of the testimony of the accused with notes, personal diaries or other secondary sources of information.In case-law, however, one can find an important exception.In 2012, the Russian Supreme Court held that the testimony of investigative officers regarding the content of suspect's confession obtained without the presence of a lawyer should be considered inadmissible under Article 75 (2) CCP RF61 .Nevertheless, Russian courts allow using jailhouse informant testimony -another highly controversial and unreliable source of secondary confessions.
Secondly, the law restricts the length of procedural interviews and interrogations.Under Article 187 CCP RF, interviews and interrogations shall not be conducted for more than four hours without a break and more than eight hours a day.In the case of minors, there are even shorter timeframes -a child under the age of seven years can be questioned for no more than thirty minutes without a break and no more than one hour daily, a child under the age of fourteen years can be questioned for no more than two hours without a break and for no more than four hours a day.There are no legal remedies against the investigative officers violating these requirements.The defence, however, could try to exclude confession on the ground of Article 75 (1) CCP RF or suggest that regarding the circumstances of the case lengthy interrogations compromise the reliability of the evidence.
Thirdly, under Article 173 CCP RF, a repeated interrogation of the accused on the same charge, if he has previously refused to give testimony at the first interrogation, may be conducted only at the request of the accused himself.This rule refers to the general principle that no one shall be compelled to be a witness against himself62 .It also provides an important guarantee against the use of this type of coercive interrogation techniques.
Fourthly, a special investigative procedure called "verification of the evidence on the spot" was introduced in 2001.According to Article 194 CCP RF, the evidence, given at an earlier date by the suspect or by the accused, as well as by the victim or by the witness, may be verified or specified at the place connected with the investigated event.This procedure aims into establishing "the new circumstances of importance for the criminal case" -the provision preventing investigative officers from duplicating testimonial evidence by simply re-enacting the suspect's previous interrogation on the spot.Importantly, Article 194 CCP RF contains several well-known forensic recommendations regarding the verification of testimonial evidence: -the verification on the spot shall amount to the procedure, during which the suspect reproduces the situation and the circumstances of the investigated event, points out the objects, the documents and the traces of importance for the criminal case, and demonstrates certain actions; -any outside interference with the process of verification or any leading questions as well as a simultaneous verification of the testimonies of several persons would be inadmissible; -the verification of the evidence shall be started with the suggestion that the suspect shows the place where his evidence is going to be verified; -only after the suspect freely tells the story and demonstrates the actions, he or she may be asked questions.
Besides, during the verification of evidence on a spot, there should be at least two attesting witnesses with no interest in the outcome of the case who certify the fact of the procedure having been conducted, as well as its results.If due to some reasons the participation of attesting witnesses is impossible, investigative officers should apply technical devices to document the process of verification and its results.The law also requires the presence of the suspect's attorney during the procedure (Article 53 CCP RF).It is worth noting that the provisions of Article 194 CCP RF do not exclude the possibility of staging the spot by adding some new objects or removing original objects to check the suspect ability to identify these inconsistencies 63 .
Fifthly, under Article 77 (2) CCP RF, the admission by the accused of his guilt in committing the crime can serve as the foundation for the charge only if his guilt is confirmed by the aggregate of the proof, existing on the criminal case.This provision refers to the idea that each evidence, especially suspect's confession, must be cross-checked with other pieces of evidence collected in the case 64 .The practical importance of Article 77 (2) CCP RF is, however, rather limited.It is very unlikely that the prosecution case would be based solely on uncorroborated confession.

dIscussIon
The discussion over police-elicited criminal confessions often amounts to the determination whether the police, or in broader terms, law enforcement authorities must be endowed with broad discretionary power to heir authority to effectively address current challenges, or instead, individual rights and privileges should be favoured over public interests.In this oversimplified approach, the answer may seem to be obvious: choosing between individual rights and investigative effectiveness, many would probably opt for the latter.However, in the light of the European Convention and the jurisprudence of the European Court, all states are required, although not in expressed terms, to adopt pertinent legal safeguards, including the exclusionary evidence rules 65 .In the case of Poland, the provisions concerning the admissibility of illegally In Russia, broad discretion is conferred on the national courts in determining whether the violation in question is significant enough to exclude the resulting evidence.It allows courts to decide on the admissibility of evidence on a case-by-case basis -the model that appears to be optimal, given the uniqueness of each case.However, the lack of clear formal criteria results in the absence of a unified practice and legal certainty.
Another common shortcoming relates to the scope of exclusionary rules provided for in national law.An official interrogation is often preceded by unofficial police questioning.In Russia, police officers are not required to document the process and the results of police questioning.In Poland, a police officer is obliged to produce an official written note.However, such a note contains a subjective assessment of the facts and often lacks significant details of the events.Without accurate and proper documentation, it is difficult to establish the facts related to alleged police misconduct.Besides, in both countries, the evidence derived from evidence obtained in violation of the defendant's conventional and constitutional rights could be legally used against the defendant.
On the positive side is the fact that in both countries evidence obtained in violation of the rights provided by Article 3 of the European Convention is considered inadmissible regardless of the circumstances of the case, thus, following the European Court jurisprudence.Nevertheless, national courts tend to treat the allegations regarding the use of improper investigative techniques as a defence strategy.While it may be true in some cases, it is still a quite dangerous generalization.It places the burden of proof, which is usually critical for the outcome of the case, on the defence party.Judicial inquiries into the allegations concerning police misconduct are often done by formal and ineffective measures.It should be, however, acknowledged that in such cases there is usually limited evidence.In both countries, it is possible and legal to document a Fair Trial?Ius Gentium: Comparative Perspectives on Law and Justice, v.  74, p. 283-305, 2019.procedural interrogations by using only written reports.In many cases regarding the alleged use of inappropriate investigative techniques, such reports are the only source of information about what happened during the interrogation and the statements made by the suspect.Besides, the interrogator' written report is always a mediated account of the interrogation, which does not accurately preserve the substance of the questions asked and the statements made.We suggest that the issue should be addressed by introducing additional means of documentation.Videotaping during procedural interrogations, as well as police questioning, should become mandatory.Our experience shows, however, that despite many obvious benefits, videotaping interrogations may raise new challenges.It is not unusual for the suspect's interrogations to last several hours and there is rarely, if ever, only one such an interrogation.So, the analysis of the resulting records is often a demanding and timeconsuming task for both the defence and later for the trial court.In our opinion, written records should be maintained alongside videotapes to provide a brief overview of the suspect's testimony.We also suggest introducing obligatory medical examinations of the suspect after police questioning and interrogations.
Regarding other legal safeguards, we doubt whether the detailed provisions concerning the length of interrogations, the prohibition of repeated interrogations and the confession evidentiary value overweight more general rules provided by the Polish law (Article 171 CCP).Instead, the growing number of applications concerning the violations of Article 3 and 6 of the Convention against the Russian Federation66 may suggest otherwise.The more important issue in terms of the prevention of improper police compulsion is the implementation of the right to assistance of a defence counsel.The practice where the defendant meets his lawyer at the end of the investigation is highly questionable concerning the European Court jurisprudence.On the other hand, it is crucial to provide not only readily available but quality legal assistance.
, the Directive 2013/48/ EU of 22 October 2013 on the right of access to a lawyer in criminal proceedings 26 , the Directive (EU) 2016/1919 of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings, the Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings 27 , the Directive (EU) 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings 28 .Unlike Poland, the Russian Federation has not been part of those agreements.Besides, the abovementioned directives have been reportedly implemented 25 Directive 2012/13/EU of 22 May 2012 on the right to information in crimi- nal proceedings.Available at: < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32012L0013>.Access on: September 10, 2020.28Directive(EU) 2016/800 of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, Available at: < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX-%3A32016L0800>. Access on: September 10, 2020.
Do Exclusionary Rules Ensure obtained evidence, i.e.Article 168a, 171 CCP, can be interpreted in different ways.The lack of a unified interpretation of those provisions remains an issue of serious concern in relation to legal certainty and transparency.