Correspondence removed from file – Kommersant FM

It will become more difficult for investigators to use correspondence to prove guilt. Law enforcement practice may change the decision of the Supreme Court. He sided with a Russian who refused to provide the police with his phone password. The first instance considered such a gesture a sign of guilt. What is known about this case? And how often does the investigation look for evidence of guilt in the phone? Ivan Yakunin will tell you.

A high-profile criminal case was tried in Volgograd. A local resident was found to have eight packages of narcotic substances with a total weight of 3.5 grams. The investigation insisted that the man had packaged the goods for the purpose of sale. Defense that everything was purchased for personal use. Correspondence could have refuted this, but the accused refused to provide the phone password. The investigation, however, convinced the court that the man was selling drugs, for which he was sentenced to 10 years in a maximum security colony. But after the intervention of the Supreme Court, the verdict was revised, the defendant’s lawyer Nikolai Viskov told Kommersant FM:

“The qualification changed from attempted sale to possession, and the term was reduced from 10 years of strict regime to 3.3 years general. My client has already served his sentence. Now he must be transferred from a strict colony to general regime. They recalculated a day spent in a strict regime colony as 1.5 days in a general regime colony.”

What is the reason? The Supreme Court notes that refusal to provide security forces with access to a telephone is the right of the accused. It cannot even be an indirect confirmation of guilt. Even if all other details point to malice, the verdict cannot be based on speculation. And the suspect is not obliged to defend himself. The Constitution, even the new one, guarantees him the presumption of innocence. Zks bureau lawyer Andrei Grivtsov says that the courts usually take this into account, but security forces still regularly point out the intractability of the accused:

“Any actions that actually involve a non-admission of guilt are mistakenly regarded as obstruction. For example, you do not testify or you are a witness and came for questioning with a lawyer. Why use a lawyer, do you really have anything to hide? Refuse to provide samples for comparative research, such as voices. A person does not have to prove his innocence, and the burden of proof is placed on the prosecution. And if a citizen does not help the prosecution, this does not mean that he is guilty of something.”

There are, of course, some nuances. Firstly, security forces can gain access to smartphones without the owner’s permission. Every year, the media write about tenders for the purchase of so-called hardware and software systems for collecting, researching and analyzing data from mobile devices. Secondly, in some cases the police may still demand a smartphone, said Alexander Zheleznikov, managing partner of the Zheleznikov and Partners bar association:

“A man is walking, police officers stop him and demand that he show his phone. They can inspect the smartphone from the outside to see if it has been stolen. It is no longer even this that is being investigated, but what may be under the cover – whether there is something prohibited there, for example. Police officers have the right to inspection. But patrol officers cannot demand to open correspondence on the street. This can be done by the investigator according to his decision. Personal correspondence is subject to the right of inviolability.”

And it is protected by the criminal code. Fines under this article reach up to 300 thousand rubles, and a possible prison term of up to four years. True, it is used extremely rarely. “Kommersant FM” studied the “Justice” database, which takes into account all trials in the country. In all of 2024, officials were called in only 29 times. And this year – not a single one.

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