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How to conduct yourself during an interrogation

6 March 2013 

Source: (info)

Zoya Svetova: how to conduct yourself during an interrogation, what rights do witnesses, suspects and those who have been charged have? 

Today none of us can be sure that we won't be summoned to an interrogation by the Investigative Committee in the near future.

The best way this can happen is if you are summoned as a witness, they get you to sign an agreement not to divulge any secrets of the preliminary investigation and after a few hours of talking you are released and allowed to go home. And that's the last you hear of it.

If, however, your name, God forbid, appears on the list of the people involved in the Bolotnaya or some other politically motivated case, after being questioned as a witness you may then be questioned as a suspect, and then after charges have been filed as the accused.

How you act during these interrogations could determine your future for many years to come. That is why it is so important to know the correct way to behave.

Do not run away from the investigator

There is a preconception that you only have to attend an interrogation if you have been handed a subpoena. In fact, Part 2 of Article 188 of the Criminal Procedure Code of the Russian Federation states: "A summons can be given to an individual called in for questioning either in person or it can be transmitted with the use of communications means."

That means that an interrogator who is too lazy to send a written notification, since letters sent by post even in Moscow take several days to arrive, and who calls you in for questioning by telephone, is not breaking the law. It is another matter the fact that you have the right to refuse to attend "by telephone call" and can demand an official written summons.

"If the investigator is a reasonable person," says Marina Andreyevna, a former investigator who now works as a lawyer, "you should be able to come to an agreement with them on a time that is convenient to you.

"If you fail to turn up for questioning after several phone calls, then a police officer will show up at your home or place of work with a summons and you will have to comply with it."

Lawyer Vadim Prokhorov advises against "haggling" and to show up for questioning if someone phones you up. "The main thing is to make sure it's not a hoax, you should ring back on the number the investigator gives you. It's best not to avoid attending."

Do not testify against yourself

"The main thing you need to understand, and keep in mind always," advises lawyer Anna Stavitskaya, "is that the investigator is your enemy, not your friend. His job is to obtain evidence from you so that he can build a criminal case.

That is why you need to be very careful, even if you like the investigator, after all they can make a good impression. You need to remember this and not give in to persuasion."

A summons to appear for questioning will state that you have the right to have a lawyer with you. Therefore it is better not to rely on yourself, do not take the risk, instead come to an agreement with a lawyer who can help you talk to the investigator.

Whatever the circumstances, a witness has the right, under Article 51 of the Russian Constitution, not to give evidence: "not to testify against themselves, their spouse or close relatives."

It is another matter that during an interrogation you may find yourself one to one with the interrogator, and they, being experienced lawyers and psychologists, could confuse you, intimidate you with the liability for refusing to give evidence, or for knowingly giving false evidence, etc..

For instance the interrogator asks you: "Do you know if so-and-so was in Bolotnaya Square on 6 May?" You reply "I don't know."

Then the investigator, taking advantage of your lack of judicial knowledge, starts persuading you that according to his information you know very well that so-and-so was there. And if you don't confirm this information then he can bring charges against you for giving false testimony.

He opens the Criminal Code in front of you and points to Article 307, which states in black and white that you are threatened with liability ranging from a fine (up to 80,000 roubles) to detention for up to three months. These same three months of detention are the "ceiling" under Article 308 ("refusal by a witness or victim to give evidence"). That is how the investigator can frighten you, if you don't remember about Article 51 of the Constitution.

"Another point is that it will be difficult for the investigator to prove that you knowingly refused to give evidence or deliberately gave false testimony," explains lawyer Vadim Prokhorov. "The investigator is hardly likely to bring a criminal case against you under these articles, especially since our detention centres have virtually stopped functioning."

But it is perfectly possible that he will get his way: you get frightened and start answering his questions.

"Under no circumstances should you talk to an investigator without the presence of a lawyer," says former prisoner Sergei Mokhnatkin, sharing his experiences. "An investigator is very skilful in laying traps for you, and they will be easy for an inexperienced person to fall into."

Lawyer Prokhorov warns: "It could happen that you refuse to give evidence, citing Article 51 of the Constitution, and the investigator says to you: Why are you refusing to give evidence? I'm only asking you a question which has nothing to do with you or your relatives, you are obliged to answer."

"The investigator is being disingenuous here: you should not automatically assume that a question for example about Chekhov's play Uncle Vanya will not come back to you. There are no one-size-fits-all solutions, but not everyone is capable of giving the correct responses to questions and only divulging the minimum amount of information in doing so. Only a lawyer can determine the best approach to take in any specific situation."

It can happen that a witness keeps going in for questioning for months at a time, and then suddenly gets charged. "An experienced lawyer who is monitoring whether the interrogations are becoming increasingly aggressive and who also has information can always sense when his client is in trouble," says lawyer Viktor Parshutkin. "I have twice been involved in such cases and on both occasions when the crucial time came, I advised my clients not to tempt fate and to flee abroad."

Make an audio recording of the interrogation

Lawyers recommend leaving a dictaphone running during an interrogation. That is not prohibited by law and could come in very useful if the investigator were for example to threaten you, hint at a bribe (which often happens in "economic" cases) or try to recruit you.

If you have an audio recording you will always be able to complain about illegal methods employed by the investigator or any pressure that was exerted upon you.

After the interrogation the investigator will ask you to sign an agreement not to divulge any secrets of the preliminary investigation.

If you refuse to sign such an agreement the investigator will call two witnesses and in their presence inform you that you can be charged under Article 310 of the Criminal Code of the Russian Federation. The penalties range from a fine of 80,000 roubles to three months' detention.

"Witnesses are rarely prosecuted for divulging secrets of a preliminary investigation," says lawyer Andreyeva. "For lawyers the situation is much more serious: if a criminal case is opened against them, they face having their licence to practice withdrawn."

Whatever the circumstances, if investigators start showing an interest in you, make provisions for the future. You should go to a notary and draw up a general power of attorney for all your personal belongings and property. Experience shows that if you are arrested it will be very difficult to make such a power of attorney for your relatives while you are in the detention centre.

In order for the head of the detention centre to certify your power of attorney or invite a notary to the detention centre he will need the investigator's permission. And he could refuse to grant this right to your family for months on end, simply out of wanting to "teach you a lesson."

Do not give evidence without your lawyer being present

The majority of searches end with the person whose home was searched being taken away for questioning by an investigator. Picture the scene: the search went on for hours, your flat has been turned upside down, all your computers, flash drives and mobile phones have been taken away, you think hard about what they might find on your computer or notebooks, and they take you to the Investigative Committee and start talking with you.

"The first thing you should do is say is that you won't talk without a lawyer being present," advises Anna Stavitskaya. "The investigator will start saying to you "What do you need a lawyer for? No one knows when he can get here, just give your evidence and you can go home!"

Do not give in to these arguments. You should never give evidence without your lawyer being present: the average person has no understanding of how anything they say could be used against them.

There is a great temptation to explain to the investigator that there has been a mistake, "I'm innocent," and the investigator will understand and let you go. That is not going to happen: once the investigator has started his work it means no one is going to be released.

The beginning of the interrogation marks the start of a real struggle. You must keep quiet and demand to be allowed to call your family or friends so that they can find you a lawyer.

The investigator has his own task: to extract from you whatever information he can so that he can "construct" a case from your words.

The case against scientist Igor Sutyagin is a classic example. If he had not started giving evidence without a lawyer present, there would never have been a criminal case against him. The entire prosecution that followed was based on his evidence."

Do not trust a state lawyer

The twelfth person named in the Bolotnaya case, Igor Gushchin, was charged at the Investigative Committee, where he was brought after his flat was searched. The search began at 6 a.m. and went on for several hours. The investigators who took Gushchin to the Central Office of the Investigative Committee did not tell his family that he would not be returning home.

His phone was taken off him and they began questioning him as a witness. When he said that he needed a lawyer the investigator reassured him: it would take his lawyer around a hour to get there and they would be finished in 20-30 minutes and then he could go home.

"The investigator misled him," says lawyer Maxim Rachovsky. "He showed him photographs which showed that Gushchin was in Bolotnaya Square on 6 May. He did not deny this. The investigator then showed him another photograph which showed how some guy had hold of a police officer by his uniform. Ilya said that it was not him. But the investigator repeated his question several times, and Gushchin, by now exhausted, and who just wanted the interrogation to be over, finally said that it was him. It was then that the investigator, satisfied, asked the police officers in question to come in and they identified Gushchin."

That is how the interrogation of Gushchin as a witness passed smoothly over to an interrogation of Gushchin as the accused. The investigator called in a state lawyer. The arrested man was then charged, he admitted everything and finally wrote a frank confession.

It was not until evening that Gushchin was allowed to call home. His family contacted Rosuznik [who support and campaign for people arrested on political demonstrations] and found him a lawyer. After the court approved his arrest, Gushchin was taken to the detention centre and at his first interrogation in the presence of his lawyer he said that his previous evidence had been given under duress.

But that is unlikely to hold much sway with the court, since his initial testimony, in which he confessed, was given in the presence of a state lawyer.

"State-appointed lawyers are generally in cahoots with the investigators," says Anna Stavitskaya. "That is why you should not do what they say. They will not help you, on the contrary they will give you the kind of advice that is most beneficial to the investigators."

Be wary of the investigator 

Aleksandr Margolin, who was taken to the Investigative Committee following a search on 20 February, was more fortunate than Ilya Gushchin. As soon as the investigator took him away for questioning, his wife began to sound the alarm. She contacted Rosuznik, and lawyer Anna Polozova was at the Investigative Committee within two hours. She rang the investigator and informed him that she had a warrant to provide defence for Margolin.

At that point Margolin was already being questioned in the presence of a state defence lawyer. In that time an identity parade had already been conducted, in which he was identified by a police officer.

"Margolin told the investigator that he was in Bolotnaya Square and described how he was dressed," says lawyer Anna Polozova. "In the identification parade they put two men next to Margolin, both of them around 10 years younger than him. So of course the police officer identified him.

"I would never have allowed that to happen. The whole operation was worked out in advance: as soon as the identification parade was over, the state lawyer gave Margolin his mobile phone so that he could ring his wife. His wife gave him my number and he phoned me."

Polozova persuaded Margolin to retract his original testimony. She is currently appealing against the actions of the investigator.

Detectives visit Margolin in the temporary detention centre. They try to persuade him to confess his guilt, reminding him that he has two small children.

It's a well-known fact that other people's experiences never teach anyone anything. Nevertheless, there are some rules that are worth following: in whatever capacity you are being questioned, be it as a witness or someone who has been charged, you should never give evidence without the presence of a lawyer whom you trust.

If you don't succeed in calling one out, refuse to give evidence 

As a witness you can cite Article 51 of the Constitution.

If you have already been charged, cite Article 47 of the Criminal Procedure Code. Under this article you too have the right to refuse to give evidence.

And do not believe the investigator; he will try to persuade you to give evidence and promise to make your plight easier.

"There is a special clarification by the Plenum of the Supreme Court," says lawyer Dmitry Agranovsky, "which states that a refusal to give evidence should not worsen the situation for the accused. The investigator cannot influence your fate.

"Remember the case of Maxim Luzyanin. I know that even the investigators who worked on his case were shocked when he was given four and a half years. They had promised him something.

"But investigators' promises are worthless. In political trials the investigators have no influence on the final outcome of the case."

Source: "The New Times"