ST 309 of the Criminal Code of the Russian Federation.
1. Bribing a witness, a victim for the purpose of giving false testimony, or an expert, specialist for the purpose of giving a false conclusion or false testimony, as well as a translator for the purpose of making an incorrect translation, is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of wages or other income of the convicted person for a period of up to six months, or compulsory work for a period of up to four hundred eighty hours, or correctional labor for a period of up to two years, or arrest for a period of up to three months.
2. Forcing a witness, a victim to give false testimony, an expert, a specialist to give a false conclusion or a translator to carry out an incorrect translation, as well as forcing these persons to evade testifying, combined with blackmail, threats of murder, harm to health, destruction or damage property of these persons or their relatives - is punishable by a fine in the amount of up to two hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to three years, or by arrest for a term of three to six months, or imprisonment for a term of up to three years.
3. The act provided for in part two of this article, committed with the use of violence that is not dangerous to the life or health of these persons, is punishable by forced labor for up to five years or imprisonment for the same term.
4. Acts provided for in parts one or two of this article, committed by an organized group or with the use of violence dangerous to the life or health of these persons, are punishable by imprisonment for a term of three to seven years.
Commentary to Art. 309 of the Criminal Code
1. The victim is a witness, victim, expert, specialist, translator or their relatives (in part 2).
2. The objective side is expressed in the form of bribery actions (Part 1); coercion combined with blackmail, threat of murder, harm to health, destruction or damage to the property of these persons or their loved ones (Part 2); coercion committed with the use of violence that is not dangerous to the life or health of these persons (Part 3); bribery or coercion committed by an organized group or with the use of violence dangerous to the life or health of these persons (Part 4). Bribery means the transfer to specified persons of remuneration in the form of money, securities, other property or rights to it, the provision of services of a property nature in order to induce them to give false testimony, make a false conclusion or make an incorrect transfer. It is important to establish the consent of these persons to receive such remuneration. For more information about the concept of bribery, see the commentary to Art. 204 CC. On the concept of coercion through the use of threats or blackmail, see the commentary to Art. 302 of the Criminal Code. The threats in this article are specified.
3. The crime is recognized as completed from the moment of partial or complete transfer of the subject of bribery (Part 1), the commission of actions aimed at forcing said persons to testify or evade testifying or to make an incorrect translation (Part 2), coercive actions, combined with violence not dangerous to life or health (Part 3), actions of bribery or coercion combined with violence dangerous to life or health (Part 4), regardless of the occurrence of socially dangerous consequences.
4. The subjective side is characterized by direct intent and goals to get the victim to give false testimony, conclusion or incorrect translation, or to force him to refuse to testify (this goal is possible in parts 2 - 4).
Actions of a person to bribe a witness or victim in order to induce them to refuse to testify are qualified as incitement to a crime under Art. 308 CC; actions to force an expert or specialist to give false testimony - as incitement to a crime under Art. 307 of the Criminal Code.
Subjective signs
The second group of elements is considered to be a set of characteristics: the personality characteristics of the criminal, his goals, motives, the nature of the guilt - all this will determine whether it is permissible to bring a particular person to justice or not.
The subject of the act in question is only a citizen, not an organization, who has reached the age of sixteen and is recognized as fully sane.
Regarding the subjective side, the procedure for establishing it is much more complicated.
This element reflects a person’s mental and psychological attitude to what he does, the danger his actions pose, and the final negative result. This perception of the situation is called guilt.
This attribute has two forms of existence, which also affects qualifications and measures of responsibility:
- Intent. It presupposes a person’s full awareness of his actions, an assessment of the negative consequences and the desire for their occurrence. That is, a person strives for a criminal result and does everything to achieve it. Intention can be direct or indirect, the difference is only in relation to the outcome of the offense, which may have a slight impact on the punishment.
- Carelessness. It also presupposes that the guilty person is fully aware of his actions. However, attitudes towards the consequences are changing. If the act of negligence occurs in the form of negligence, then the person did not foresee the negative result, but should have done so due to the circumstances. If in the form of frivolity, then the criminal knows what will happen after he commits the act, but without sufficient grounds for this he believes that the consequences will not occur.
Speaking about the crime associated with coercion to give false testimony and refusal of it, only direct intent is at work here.
Also, judicial practice in the Resolutions of the Plenum reflects the need to determine the goals of the criminal. It is important to establish the fact that the guilty person sought to obtain false testimony relating to a specific case. Threats, blackmail, violence without such a purpose will have a different qualification with the application of sanctions of another article of the law, for example, extortion.
Second commentary to Art. 309 of the Criminal Code of the Russian Federation
1. Bribery consists of material reward personally or through intermediaries (payment of money, transfer of valuables, exemption from payment of debt, provision of other types of material benefits) to a witness, victim, expert or translator for giving false testimony, conclusions or incorrect translation. This concept also covers the promise of the perpetrator to provide specified persons with property benefits in the future. Bribery can be carried out both in criminal and civil, arbitration and administrative cases, as well as in cases of administrative offense.
2. The crime is considered completed from the moment of reaching an agreement to give false testimony, conclusion or making an incorrect transfer.
3. The subjective side is characterized by direct intent and purpose - to achieve false testimony, conclusion or incorrect translation.
4. The subject of the crime is a person who has reached the age of 16 years.
5. Coercion (Part 2 of Article 309 of the Criminal Code) should be considered mental influence on a witness, victim, expert, specialist or translator as a way to force them to perform one of the actions specified in the law:
a) give false testimony (conclusion) or make an incorrect translation; b) avoid giving evidence.
The law associates coercion with blackmail or threat.
6. The crime should be considered completed from the moment the demands are made to give false testimony or make an incorrect translation, supported by blackmail or threat.
7. The subjective side is characterized by direct intent.
8. The subject of the crime is a person who has reached the age of 16 years.
9. A qualified type of coercion (Part 3) is determined by the use of violence that is not dangerous to the life or health of these persons (see commentary to Article 161 of the Criminal Code).
10. In part 4 art. 309 provides for liability for bribery or coercion committed by an organized group or with the use of violence dangerous to the life or health of these persons (see comments to Articles 35 and 162 of the Criminal Code).
On the fine line between coercion and legitimate investigation
The first example is the threat of applying a preventive measure in the form of detention and the second threat is a change in status in a criminal case from a witness to a suspect or accused.
In fact, everything is very simple: if the investigation can really put you in jail, changing your status from a witness to an accused or suspect, and speaks openly about this, offering to leave everything as it is in exchange for some truthful testimony, then there is no coercion here.
But if the investigation has no grounds, and they blackmail you, simply scare you, intimidate you, and, in addition, ask you to give false testimony, then this is already part of Article 302 of the Criminal Code of the Russian Federation.
The fact is that changing the status from a witness to a suspect or accused necessarily entails the filing of charges against him and the selection of a preventive measure.
In any case, the change in status is agreed upon by the prosecutor's office, and if a preventive measure in the form of detention is also chosen, then in addition to the prosecutor's office, the court must also approve this measure, and for this there must be strong evidence of guilt.
As a rule, the investigator frightens you with the fact that there will definitely be an arrest now if you do not start giving confessions. For clarity, he prints out the decision to bring him in as a suspect or the decision to select a preventive measure, shows handcuffs, sometimes even calls for an escort and gives some time for the person to think. They quite convincingly make it clear that if there is no confession in 15 minutes, then we will go to court to formalize the arrest, and the court already knows everything.
It could be a performance.
Unfortunately, sometimes our law enforcement agencies do not shy away from methods of achieving results, not truth, but results.
Responsibility
The qualification of a crime involves not only establishing a correspondence between the signs of a specific act described in the criminal law and the real circumstances of the act.
This will also include determining the category of the crime, that is, its severity, and, accordingly, the possible punishment by a court verdict.
Influencing a person to obtain false testimony under the first two parts of the article is an act of minor gravity, under the third - medium gravity, and under the fourth - serious.
Due to the variety of categories, the article provides for a large number of punishment options:
- a fine varying from eighty to two hundred thousand rubles if the severity is minor;
- compulsory work in the first part up to four hundred eighty hours;
- correctional labor also under part one of article up to two years;
- forced labor for an act of average gravity up to three years;
- imprisonment provided for crimes under the second, third and fourth parts of the article, where the minimum term is three years, the maximum is seven years.
The sentencing is carried out taking into account both aggravating and mitigating circumstances.
Thus, this rule presupposes responsibility placed on a specific subject for actions aimed at changing or eliminating testimony.
This harms the progress of the investigation and encroaches on the relations associated with the administration of justice.
Judicial practice under the article
The article is often used, since many influence witnesses or participants in the trial in order to change the outcome of the case or verdict.
Examples of cases:
- Citizen V. learned that his son was arrested for rape. He didn’t believe it and decided to talk to the injured party himself. At first V. was calm, but then, when he found out that the girl wanted to imprison his son for a maximum term, he became furious and began to threaten her with a knife so that she would abandon the case. They managed to stop him, the girl filed a lawsuit for threats and coercion to give false information. For this, V. received a fine and forced labor.
- Citizen M. had a husband who, being drunk, robbed a passerby and fled the scene of the crime. He reported to the police, and the criminal was quickly tracked down. M. decided to save him from custody and bribe an expert to declare him insane. The expert refused and told the investigation about this. M. received a fine.
- Citizen G. was arrested for fraud. While the case was being investigated, his accomplices decided to influence the investigator so that he would give false testimony, falsify evidence, and G. would receive a suspended sentence or be completely released. To do this, they kidnapped the investigator's wife and held her by force. The police managed to free her, all her accomplices were arrested, and they were given 6 years in prison for the totality of their acts.
What decisions are made under Article 309?
The article more often makes decisions of an accusatory nature. In 2022, it dealt with 57 cases, of which 20 cases each fell on the 2nd and 3rd parts, and the least - on the fourth (4 cases). Of these, 15 people received prison sentences, 14 received suspended imprisonment, 25 received a fine, 2 received correctional sentences, and 1 received compulsory labor. Another 1 was declared mentally insane.
How can you protect yourself from this?
Naturally, a competent criminal lawyer will help. Being on the spot, he will understand whether it is a bluff or not, will file a protest, write a petition, and so on. Usually, if there is a lawyer nearby, then such performances will not happen without reason. Only if the investigator is clearly sure that he has enough evidence, he will not bluff with a lawyer, because this is fraught with the very 302-0th article of the Criminal Code of the Russian Federation.
In addition, you must understand that without a lawyer you will not be able to prove that you were threatened. These will simply be your words, which the relevant authorities will treat as a slander against the investigator. Unfortunately, this is exactly the practice.
If it so happens that you find yourself alone and coercive measures are applied to you, try to leave traces of your presence in this room.
These may be fingerprints on the inside of the table, so that it is not noticeable, tear off a button and put it behind the battery, this will be proof that you were there and something was used on you.
If physical violence was used, then as soon as the opportunity arises, you should immediately run to the emergency room. Not in a day, not in an hour, but right away. Regardless of what testimony you gave.
If it so happens that the court has made a decision to select a preventive measure in the form of detention, then upon placement in a pre-trial detention center, an inspection must be carried out. File a petition that you have physical injuries and explain how you received them; there must be documentary evidence.
If this does not happen, which also happens quite often, demand meetings with a lawyer so that when he is allowed to see you, he will record that you really have bruises and abrasions.
Unfortunately, there are not many ways to protect yourself from illegal actions in the fight against the law enforcement machine, and they are not always effective enough.
