ST 308 of the Criminal Code of the Russian Federation.
Refusal of a witness or victim to testify or evasion of the victim from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research is punishable by a fine of up to forty thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to three months, or by compulsory work for a period of up to three hundred and sixty hours, or by correctional labor for a period of up to one year, or by arrest for a period of up to three months.
Note : A person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives.
Commentary to Art. 308 of the Criminal Code
1. The objective side is expressed in inaction: a) refusal of a witness or victim to testify; b) the victim’s evasion from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from submitting handwriting and other samples for comparative research. Refusal to testify may be expressed in silence or in an oral or written statement about a complete or partial refusal to testify. At the same time, the person does not hide the fact that he has the necessary information. Evasion is expressed in the failure to appear (failure to fulfill the obligation to appear), without good reason, of the victim within the established time limits for undergoing an examination, proceedings in relation to his forensic examination in cases where his consent is not required, or in evading the submission of handwriting samples and other samples for comparative research. These actions are carried out during the proceedings at the stage of pre-trial or judicial proceedings. The fact that a witness or victim fails to appear when summoned to an inquirer, investigator or court without good reason cannot be qualified under this article.
2. The crime is recognized as completed from the moment the witness or victim refuses to testify, or the victim fails to appear to carry out other specified procedural actions.
3. Special subject: a) a person recognized as a witness or victim in the case; b) a person recognized as a victim in the case.
4. The note stipulates that a person is not subject to criminal liability for refusing to testify against himself, his spouse or his close relatives (Clause 4 of Article 5 of the Code of Criminal Procedure of the Russian Federation), which corresponds to the provision of Part 1 of Article 51 of the Constitution of the Russian Federation.
Judicial practice: sentences and punishment under Art. 308 of the Criminal Code of the Russian Federation
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 27, 2002 N 29 ON JUDICIAL PRACTICE IN CASES OF THEFT,...
- Decision of the Supreme Court: Determination N 203-APU17-21... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 203-APU17-21 APPEAL DECISION Moscow August 31, 2022 Judicial Collegium for Military Personnel of the Supreme...
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION of November 15, 2016 N 48 ON THE PRACTICE OF APPLICATION BY COURTS OF LEGISLATION GOVERNING FEATURES...
- Resolution of the Presidium of the Supreme Court of the Russian Federation dated... PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 5, 2018 N 126-P18 ON RESUMING PROCEEDINGS IN THE CASE DUE TO NEW...
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated June 25, 2022 N 18 ON JUDICIAL PRACTICE IN CASES OF CRIMES,...
- Ruling of the ECtHR dated 02/14/2017 EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE “MASLOVA VS. RUSSIAN FEDERATION” (Complaint No. 15980/12) JUDGMENT…
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 17, 2022 N 43 ON SOME ISSUES OF JUDICIAL PRACTICE IN CASES...
- Decision of the Supreme Court: Determination No. 38-АПУ17-2 dated... THE SUPREME COURT OF THE RUSSIAN FEDERATION No. 38-АПУ17-2 APPEAL DECISION Moscow March 1, 2022 Judicial Collegium for Criminal Cases of the Supreme Court...
- Decision of the Supreme Court: Resolution No. 310P13 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 310-P13 Moscow January 23, 2014 Presidium of the Supreme Court of the Russian Federation...
- Ruling of the Constitutional Court of the Russian Federation dated March 13, 2018 N 578-O THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION RULING dated March 13, 2018 N 578-O ON THE REFUSAL TO ACCEPT A CITIZEN’S COMPLAINT FOR CONSIDERATION...
Second commentary to Art. 308 of the Criminal Code of the Russian Federation
1. The objective side covers two acts:
1) refusal of a witness or victim to testify, i.e. demonstrative unwillingness to fulfill the procedural obligation to give truthful testimony. The refusal to testify is expressed in a clear and categorical statement made both orally and in writing. If a witness or victim distorts factual circumstances related to the subject of proof or the subject of the claim, his actions fall under Art. 307 CC;
2) the victim’s evasion from undergoing an examination, from conducting a forensic examination in cases where his consent is not required, or from providing handwriting and other samples for comparative research.
2. The crime is completed from the moment the actions specified in the law are committed.
3. The subjective side is characterized by direct intent.
4. The subject of the crime is special: a witness or victim. A person is not subject to criminal liability for refusing to testify against himself, his spouse or close relatives.
Judicial practice under Article 308 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 07/05/2018 N 4-APU18-25
Taking into account the procedural status of Sh. as a person in respect of whom the case was separated into separate proceedings in connection with the conclusion of a pre-trial agreement, the court did not correctly warn him about criminal liability under Art. Art. 307, 308 of the Criminal Code of the Russian Federation and explained the provisions of Art. Criminal Code of the Russian Federation.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 02/09/2018 N 1-APU17-12
During the identification process (vol. 3, pp. 123 - 124), she was not warned of liability under Art. Art. 307 and 308 of the Criminal Code of the Russian Federation. Interrogated in the witness box, witness B., witness K., and extra L. confirmed the contents of the protocol, which does not contain any indication of her warning of liability. At the same time, B. noted a significant difference between the identifiable Shkaev and the extras. At the same time, despite these violations, the court recognized this protocol as admissible, trying to justify this with judgments that directly contradict the requirements of Art. Art. 193, 166 and 167 of the Code of Criminal Procedure of the Russian Federation, allowing for the possibility of a one-time warning of a witness about liability for giving knowingly false testimony for the entire period of the proceedings.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated 08/09/2018 N 205-APU18-18
The interrogations of the named persons were carried out by the investigator in compliance with the requirements of Art. Art. 164 and 189 of the Code of Criminal Procedure of the Russian Federation. The investigator verified the identity of the witnesses, explained their rights, and warned them about the responsibility provided for in Art. Art. 307 and 308 of the Criminal Code of the Russian Federation, as well as the procedure for conducting investigative actions. Interrogation of witnesses G. and M. in the absence of lawyers, requirements of Part 5 of Art. 189 of the Code of Criminal Procedure of the Russian Federation does not contradict. In accordance with this provision of the law, the lawyer is present during the interrogation of the witness and enjoys the rights provided for in Part 2 of Art. 53 of the Code of Criminal Procedure of the Russian Federation, if the witness came for questioning with a lawyer invited by him to provide legal assistance.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 06.08.2018 N 72-APU18-9sp
Interrogated witnesses and victims were warned about criminal liability under Art. Art. 307, 308 of the Criminal Code of the Russian Federation. Subscriptions regarding this were taken from witnesses at the place of their interrogations, including through videoconferencing; these signatures are available in the case materials. The parties were not deprived of the opportunity to ask the interrogated witnesses questions of interest to them, taking into account the peculiarities of the judicial investigation with the participation of a jury.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 21, 2019 N 69-APU19-3
The interrogation of G. via video conferencing does not contradict Art. 278.1 Code of Criminal Procedure of the Russian Federation. As follows from the protocol of the court session, the violations committed during his initial interrogation (in terms of warning about criminal liability under Art. 307 - 308 of the Criminal Code of the Russian Federation) were eliminated by the court during the second interrogation, during which the provisions provided for in Art. 51 of the Constitution of the Russian Federation. In support of a guilty verdict, the court relied only on those testimonies that were obtained in compliance with the requirements of the criminal procedure law, they were assessed in conjunction with other evidence, while the rules for checking and evaluating evidence provided for in Art. Art. 87 - 88 of the Code of Criminal Procedure of the Russian Federation were observed by the court, and therefore the Judicial Panel finds the arguments of the complaint about the impossibility of using G.’s testimony when reaching a verdict to be untenable.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated July 17, 2019 N 201-APU19-29
According to the interrogation protocols read out in court, witnesses P. and S., each individually, were warned of criminal liability under Art. Art. 307 and 308 of the Criminal Code of the Russian Federation, for giving knowingly false testimony. There are no contradictions in their testimony that could cast doubt on their reliability and admissibility.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 27, 2019 N 4-APU19-15SP
Taking into account N.’s procedural status as an accused in a separate case and as a person with information on this case, he cannot in this case be the subject of crimes under Art. Art. 307, 308 of the Criminal Code of the Russian Federation, which eliminates the need to warn him before interrogation about criminal liability under these articles and explains the absence of his signature in the case, which Cheremisin’s lawyer draws attention to in the complaint.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 15, 2019 N 67-APU19-9
In support of his petition, he referred to a number of circumstances indicating non-compliance with the requirements of Part 5 of Art. 164 and part 2 of Art. 182 of the Code of Criminal Procedure of the Russian Federation during these investigative actions (the witness and specialist were not warned about criminal liability under Articles 307 and 308 of the Criminal Code of the Russian Federation, the right to defense was not explained, the investigator’s notification did not contain the start time for drawing up the search protocol, searches in D.’s home and S. were carried out at the same time), but the court decided to consider his petition when rendering a sentence. The notice of the search carried out in D.'s home indicates the time of its completion, which coincides with the time in the notice of the search carried out in S.'s home. These notifications were received by the court in violation of the deadline established by Part 5 of Art. 165 of the Code of Criminal Procedure of the Russian Federation, however, the district court unreasonably declared the searches legal. The court unreasonably refused to satisfy his request to identify the persons participating in the negotiations, to interrogate them, to carry out “a set of operational investigative measures,” which is necessary to investigate the circumstances related to the wiretapping of telephone conversations of A.V. Plotnikov.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 13, 2019 N 66-APU19-16
On June 10, 2022, 2 cell phones seized from T. were inspected (vol. 4, pp. 1 - 19), and on June 11, 2022, phones seized from Kudri were examined (vol. 4, pp. 20 - 160) . According to the inspection protocols, a specialist from the FSB S. was involved in the inspection. By involving a specialist, the investigator, in violation of Part 5 of Art. 164 of the Code of Criminal Procedure of the Russian Federation did not warn him of criminal liability under Art. Art. 307 and 308 of the Criminal Code of the Russian Federation, did not indicate in which field he is a specialist, his experience and other information. To determine reliable records in mobile phones, special knowledge was required, for which it was necessary to appoint forensic computer examinations, which was not done, as a result of which the examination protocols of T. and Kudri’s cell phones, as well as Kudri’s phones themselves, are unacceptable evidence.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated October 1, 2019 N 201-APU19-46
Yes, "V." and N. were interrogated at the court hearing in the manner established by the criminal procedural law and warned of criminal liability under Art. Art. 307 and 308 of the Criminal Code of the Russian Federation. Their testimony, given during the preliminary investigation, was read out in court in accordance with Part 3 of Art. 281 Code of Criminal Procedure of the Russian Federation.
Appeal ruling of the Judicial Collegium for Military Personnel Cases of the Supreme Court of the Russian Federation dated September 17, 2019 N 201-APU19-39
All witnesses were questioned at the court hearing in the manner established by the criminal procedure law, and warned of criminal liability under Art. Art. 307 and 308 of the Criminal Code of the Russian Federation. Any reasons for slandering N.A. Budeychuk? they do not have them, which the accused himself directly confirmed at the court hearing. The testimony of the witnesses is consistent with each other and supported by other evidence.
