Life – to the Fatherland, phone – to no one

The Supreme Court (SC) of Russia stated that a person’s refusal to tell the police the password for a mobile phone cannot be “even indirect confirmation of guilt.” The Supreme Court came to this conclusion after considering the complaint of Volgograd resident Roman Kasenkov, who received ten years in prison for drug offenses. The district, regional and cassation courts found him guilty of attempted trafficking – and one of the arguments was the man’s refusal to provide the police with passwords for the seized phones. However, the Supreme Court considered that Mr. Kasenkov had the right to defend himself in this way, and recalled the importance of the presumption of innocence. The lawyers interviewed by Kommersant have not encountered such cases, but are confident that the decision of the Supreme Court will help prevent such violations of the rights of Russians.

The Supreme Court ruling states that Roman Kasenkov was detained on December 21, 2020; Eight packages of mephedrone with a total weight of 3.512 g were found on him. The case was heard by the Voroshilovsky District Court of Volgograd. The man claimed that he was going to use drugs on his own. His defense pointed out that “the mass of the seized drug cannot indicate the presence of intent to sell it” and that swabs from the detainee’s hands showed no traces of drugs. However, the court noted that Mr. Kasenkov was detained in a place where, according to the police, “stashes with narcotic substances were often made.” The discovered packages of mephedrone were “in packaging convenient for sale.” Finally, the court considered as evidence of guilt the fact that the man refused “to voluntarily provide law enforcement agencies with passwords for the mobile phones seized from him, and therefore the experts were unable to gain access to the information contained on the phone.” As a result, the district court found him guilty of attempted sale of drugs on a large scale (part 3 of article 30, paragraph “d” of part 4 of article 228.1 of the Criminal Code of the Russian Federation) and sentenced him to ten years in prison. Later, the Volgograd Regional Court and the Fourth Court of Cassation left the verdict unchanged.

Considering the complaint from a Volgograd resident, the Supreme Court noted that there is no evidence in the case of “active actions aimed at arranging the “bookmarks”.” There is also no information about “connections with suppliers and consumers of narcotic drugs,” and when inspecting the apartment, “no devices for packaging and packaging narcotic drugs for subsequent convenient sale were found.” Finally, the Supreme Court emphasized that the refusal of the accused to unlock the phone cannot be even an indirect confirmation of guilt, since “everyone has the right to defend their rights and freedoms by all means not prohibited by law, while a citizen has the right not to testify against himself.” The Supreme Court also recalled that the Code of Criminal Procedure gives citizens the right to “object to the accusation or refuse to testify.” The judges also reminded about the presumption of innocence. “Thus, the courts took into account the method of defense chosen by Kasenkov against the charges brought against him as a circumstance confirming his guilt, which is unacceptable,” the Supreme Court ruling says. The Supreme Court itself qualified the man’s actions as illegal acquisition and possession of a narcotic drug on a large scale (Part 2 of Article 228 of the Criminal Code of the Russian Federation) and sentenced him to three years and three months in a general regime colony. In this case, the part of the sentence served by Roman Kasenkov will be counted with all coefficients.

Lawyer Alexey Laptev told Kommersant that in his practice he had not encountered situations where the court considered a refusal to provide a phone password as evidence of guilt. He also did not hear about such cases from his colleagues. Usually, the investigative authorities themselves gain access to confiscated smartphones, the defense attorney explains: “I had cases where phones were confiscated, the defendants did not tell the passwords, and the investigation itself, through a technical expert, gained access to them.” However, Mr. Laptev is confident that the Supreme Court’s ruling can be beneficial in law enforcement practice: “In my opinion, the decision is significant, since courts, as a rule, demonstrate an accusatory bias and interpret circumstances contrary to the presumption of innocence.”

“Despite the fact that we do not have case law, the position of the Supreme Court should help lower courts prevent such a violation of Part 2 of Art. 45 and Art. 51 of the Constitution of the Russian Federation. It clearly states that no one is obliged to testify against himself and everyone has the right to defend their rights and freedoms in all non-prohibited ways. The Code of Criminal Procedure also provides for the right of every suspect and accused not to testify at all,” lawyer Sergei Badamshin told Kommersant. “I can’t imagine how it was possible to initially stipulate in the court’s verdict that refusal to voluntarily provide the password on the phone refutes the defense’s argument that the intent was far-fetched, which the defendant was charged with. In principle, I have never encountered anything like this in my practice, but it’s good that the Supreme Court in this particular case showed the inadmissibility of such an interpretation of a person’s actions, since silence and refusal to disclose the phone password is only the exercise of the right to protection.”

Emilia Gabdullina