Reasons for avoiding testifying
A witness is a citizen who may know information about circumstances relevant to the trial.
Note!
Criminal, administrative and civil law provides that citizens have the right to avoid testifying against close relatives, themselves and against their spouse.
The circle of close relatives is specified in Article 14 of the Family Code of the Russian Federation. According to the law, close relatives are recognized as: parents, children, grandparents, grandchildren, full and half-brothers and sisters. You can also refuse to testify in relation to adopted children and adoptive parents.
Note!
For criminal proceedings, the circle of close relatives is narrowed. According to Part 4 of Article 5 of the Criminal Procedure Code, half-siblings are excluded from the list of persons in closely related relationships.
Reasons for avoiding testifying may also be the type of activity or profession of the witness.
These reasons are not grounds for sanctions against a citizen. In other cases, evasion from giving testimony, examination, or samples entails criminal liability under Article 308 of the Criminal Code of the Russian Federation.
A witness may evade testifying and cooperating with the investigation for selfish reasons, connections with criminals, or personal interest. Refusal may delay the investigation and trial. Therefore, there is a punishment for it.
How does witness interrogation work?
After checking the details of the person who arrived on the subpoena, the investigator will explain to the witness his rights and obligations in accordance with part five of Article 164 of the Code of Criminal Procedure of the Russian Federation. What is required is official data, from marital status to being registered at a dispensary (narcology, psychoneurology).
Often, investigators motivate a witness to speak freely by asking them to “tell us what you know about the situation.” By listening carefully to the witness, the investigator will be able to identify his weak points and then build an interrogation around them. The police officer conducting the inquiry will try to bring the witness into a confidential conversation. He will present the most convincing arguments of the investigation after a while and always suddenly, in order to break through the emotional defense of the witness.
It is more convenient for the person being interrogated to participate in the interrogation in the “question-answer” format. By the way, the investigator will be well aware of the answers to the first few questions (up to 5-7 questions). He will try to evaluate from them how sincere the witness is. Keep in mind that the investigator’s task is for the person being interrogated to help him achieve his goal. And nothing else!
Keep in mind that with the procedural status of a witness, the personal interests of a citizen are the least protected (Article 56, Part 6 of the Code of Criminal Procedure of the Russian Federation). The only defense option for a witness invited by subpoena is to participate in the questioning of a lawyer.
Who can refuse to testify?
According to Article 56 of the Code of Criminal Procedure, judges and juries who learn about the case as part of the trial, as well as lawyers who receive information while providing legal advice, are not called as witnesses. Paragraph 3 of this rule of law states an exception: a lawyer can testify in court with the permission of his client and in his interests.
Clergymen who learn about a crime during religious sacraments may refuse to testify. Members of the Federation Council and State Duma deputies are also exempt from witness functions if information came to them during the period of their powers. Also, information received by tax inspectors within the framework of the Law “On the voluntary declaration by individuals of assets and accounts (deposits)” is not used as evidence.
How can they be summoned for questioning?
The procedure for calling a citizen to testify is determined by Article 188 of the Code of Criminal Procedure of the Russian Federation. There are two legal formats for summoning for questioning: written (by summons) and using means of communication. The text about calling the interrogated person must indicate his full name, the status of the person being called (for example, “as a witness”), the full name of the caller (investigator, interrogator), the address where the interrogated person is required to arrive, the date and time of the interrogation (Article 188). .1 Code of Criminal Procedure of the Russian Federation).
Summons
. Notification by summons is carried out only against a receipt confirming its acceptance. If it is impossible to hand it over to the person being called in person, it is handed over against signature to a family member (an adult) or an administrative employee at the place of work of the person being called.
Calling via communications
(Article 188 Part 2 of the Code of Criminal Procedure of the Russian Federation). This method of notification of a summons for interrogation must be carried out under the terms of notification by summons. Those. the option of calling the person summoned for questioning and verbally communicating the need to come to the investigator does not correspond to the letter of the law, since it does not allow recording the content of the notification transmitted over the telephone.
Using means of communication, the summons is transmitted to the citizen only in the form of a text message and subject to the established form of notification (full name of the addressee, his status, full name of the caller, etc.).
As with the delivery of a paper subpoena, the person summoned for questioning must confirm the fact of receipt - open the message and read it. If the message was opened (for example, an SMS was read or a telegram message was opened), then the notification took place.
Refusal to testify as a witness
Refusal to testify in administrative proceedings is subject to a fine. In cases where a witness refuses to testify in a civil case, the citizen bears responsibility under the criminal code. At the same time, the refusal of an eyewitness or victim to testify in criminal cases provides for punishment: a fine, labor and imprisonment for a period of 3 months
Note!
According to Article 25.6 of the Code of Administrative Offenses of the Russian Federation, eyewitnesses are required to come to the judicial authority when called by the court or an official.
Also, the duties of witnesses include giving truthful testimony and honest answers to questions from participants in the process. The testimony of the witness is entered into the protocol, which is checked by the citizen, and the correctness of the records is certified by a signature.
The refusal of an eyewitness to testify will be accepted by the court only in cases where the disclosure of data occurs against one’s own interests or the interests of close relatives. In all other cases, refusal to testify is subject to liability: administrative and criminal.
Commentary to Art. 308 of the Criminal Code of the Russian Federation
The main object of this crime is the interests of justice. An additional object is the rights and freedoms of man and citizen, the legitimate interests of individuals and legal entities.
The social danger of the crime in question lies in the fact that as a result of its commission, the administration of justice is hampered and obstacles are created to establishing the truth and a full, comprehensive and objective investigation of the case.
Unlike witnesses and victims, the suspect and the accused have the right not to testify.
Criminal liability has not been established for an expert’s refusal to give an opinion. The culprit may be brought to disciplinary liability (for example, by the expert institution where he works) or to civil liability (for example, an expert is an individual entrepreneur for failing to fulfill his obligations under a contract for the provision of paid services, Article 779 - 783 of the Civil Code of the Russian Federation).
Refusal of a victim or witness to testify in a case of an administrative offense in accordance with Art. Art. 25.2 and 25.6 of the Code of Administrative Offenses of the Russian Federation entails liability under Art. 17.7 of the Code of Administrative Offenses of the Russian Federation, due to which criminal liability for these actions is not provided for in the current criminal legislation.
According to the Code of Criminal Procedure of the Russian Federation (Articles 277 and 278), the Code of Civil Procedure of the Russian Federation (Article 176), and the Arbitration Procedure Code of the Russian Federation (Article 56), the witness and the victim are warned of criminal liability for refusing to testify. What do they sign, which is attached to the minutes of the court hearing?
The objective side of the crime is expressed in the refusal of a witness or victim to testify.
According to the construction of the objective side, the corpus delicti is formal. It can be committed either by action (direct oral or written refusal to testify) or by inaction (silence in response to an offer to testify). The crime is considered completed at the moment of commission of any of these acts, regardless of the consequences.
Further behavior of a person (for example, giving evidence in court after refusing to give it at the preliminary investigation) does not affect the qualification of the offense, but can be taken into account when individualizing responsibility (for example, when deciding on the application of Part 2 of Article 14 of the Criminal Code of the Russian Federation). Also, the fact that the person has previously given evidence does not indicate the absence of evidence.
If the reasons for the refusal were facts of physical or mental coercion to such refusal, then the issue of criminal liability of the witness or victim who refused to testify is decided based on the provisions of Art. 40 of the Criminal Code of the Russian Federation, which provides for the mentioned types of coercion as one of the circumstances excluding the criminality of an act. At the same time, the issue of initiating a criminal case under Art. 309 of the Criminal Code of the Russian Federation in relation to a person forcing a witness or victim to evade testifying.
As with the previous corpus delicti, the absence of a warning about criminal liability in the event of a witness or victim’s refusal to testify is one of the constructive features of the crime and excludes criminal liability. This conclusion, from our point of view, is confirmed by the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 31, 1995 No. 8 “On some issues of the application by courts of the Constitution of the Russian Federation in the administration of justice,” which states that when considering civil and criminal cases, courts It must be taken into account that, by virtue of Art. 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law; the said constitutional provision must be explained not only to the defendant, but also to his spouse or close relative before questioning this person as a witness or victim; otherwise, the testimony of such persons must be recognized by the court as obtained in violation of the law and cannot be evidence of the guilt of the accused (suspect). Thus, the Plenum of the Supreme Court of the Russian Federation associates non-compliance with the procedural requirement in question with the inadmissibility of evidence and the absence of a refusal to testify.
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Bulletin of the Supreme Court of the Russian Federation. 1996. N 1.
The evasion of the witness and the victim from appearing in court should be distinguished from refusal. This act entails not criminal, but procedural liability, which is exhaustively specified in Art. 111 of the Code of Criminal Procedure of the Russian Federation.
The note to the article states that refusal to testify against oneself, one's spouse or one's close relatives is not subject to criminal liability. This is in accordance with the provisions of Art. 51 of the Constitution of the Russian Federation.
It should be borne in mind that the RF IC in Part 2 of Art. 1 indicates that only marriages entered into at the civil registry office (registry office) are recognized. Consequently, only legally married persons are subject to this note and are not subject to criminal liability for refusing to testify against their spouse.
Part 2 Art. 51 of the Constitution of the Russian Federation states that federal law may establish other cases of exemption from the obligation to give testimony.
This provision of the Constitution was developed in Part 3 of Art. 56 Code of Criminal Procedure of the Russian Federation. The following are not subject to questioning as witnesses:
1) judge, juror - about the circumstances of the criminal case that became known to them in connection with participation in the proceedings in this criminal case;
2) the defender of the suspect, the accused - about the circumstances that became known to him in connection with participation in the criminal proceedings;
3) lawyer - about the circumstances that became known to him in connection with the provision of legal assistance;
4) the clergyman - about the circumstances that became known to him from confession;
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The issue in paragraph 7 of Art. was resolved similarly. 3 of the Federal Law of September 26, 1997 N 125-FZ “On freedom of conscience and religious associations” (as amended) // SZ RF. 1997. N 39. Art. 4465.
5) a member of the Federation Council, a deputy of the State Duma without their consent - about the circumstances that became known to them in connection with the exercise of their powers.
The issue in Part 5 of Art. is resolved in a similar way. 56 of the Arbitration Procedure Code of the Russian Federation: judges and other persons involved in the administration of justice are not subject to questioning as witnesses about the circumstances that became known to them in connection with their participation in the consideration of the case, representatives in a civil and other case - about the circumstances that became known to them in in connection with the performance of the duties of representatives, as well as persons who, due to mental disabilities, are not able to correctly understand the facts and testify about them.
The corresponding provisions have been established in Part 3 of Art. 69 of the Code of Civil Procedure of the Russian Federation, where it is determined that the following are not subject to questioning as witnesses:
1) representatives in a civil case or defense attorneys in a criminal case, a case of an administrative offense - about the circumstances that became known to them in connection with the performance of the duties of a representative or defense attorney;
2) judges, jurors, people's or arbitration assessors - about issues that arose in the deliberation room in connection with the discussion of the circumstances of the case when making a court decision or sentence;
3) clergy of religious organizations that have undergone state registration - about the circumstances that became known to them from confession.
According to Part 4 of Art. 69 of the Code of Civil Procedure of the Russian Federation in addition to the persons listed in the note to Art. 308 of the Criminal Code of the Russian Federation (Part 1 of Article 51 of the Constitution of the Russian Federation), has the right to refuse to give testimony: deputies of legislative bodies - in relation to information that has become known to them in connection with the execution of deputy powers (clause 4), the Commissioner for Human Rights in the Russian Federation Federation - in relation to information that became known to him in connection with the performance of his duties (clause 5).
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A similar rule is contained in Part 2 of Art. 24 of the Federal Constitutional Law of February 26, 1997 N 1-FKZ “On the Commissioner for Human Rights in the Russian Federation” // SZ RF. 1997. N 9. Art. 1011.
It is necessary to note that these persons are exempt from liability precisely for refusing to testify, and not for giving false testimony. In the latter case, criminal liability under Art. 307 of the Criminal Code of the Russian Federation applies on a general basis.
The subjective side of this crime is characterized by direct intent, i.e. the person is aware that his testimony is important for a comprehensive and objective investigation of the case or its consideration in court, anticipates that his refusal to testify may interfere with this, but wishes to act in this way. The motives can be very different, including those indicated when considering Art. 307 of the Criminal Code of the Russian Federation. The reasons for refusal do not matter for the qualification of the offense, but are taken into account when assigning punishment.
The subject of a refusal to testify is a sane person who has reached the age of sixteen, who has been brought to participate in the case as a witness in accordance with the procedure established by law, or who has been recognized as a victim in the case (a special subject). Witnesses and victims under the age of sixteen cannot be held criminally liable.
Refusal of the defendant to testify in court
The defendant’s refusal to testify in court is a legal right of a citizen, enshrined in the Criminal Procedure Code. Also, according to the Criminal Code, refusal to testify against oneself is not punishable by either a fine or arrest. The court proceeds from Article 47 of the Criminal Procedure Code, recognizing that giving evidence to the defendant is a right, not an obligation.
If the defendant agrees to testify, according to Article 275 of the Criminal Procedure Code, the first interrogation is carried out by the lawyer and the defense participants. During the interrogation, the defendant has the opportunity to make notes, which must be presented to the court upon request. The judge is the last to interrogate, when questions have already been asked by all parties to the trial.
Note!
In criminal proceedings, when the defendants are a group of people, non-joint testimony is provided for by the defendants.
This case is possible when one of the parties to the proceeding approaches the court with a petition. In such a situation, during the testimony of one of the defendants, the remaining defendants leave the courtroom, accompanied by employees of the Federal Bailiff Service. And after their return, the judge conveys the contents of the testimony given in the absence of the defendants and gives the opportunity to ask questions to the witness.
Forced summons for questioning
If a witness ignores the need to arrive for questioning on a subpoena, the measures of procedural coercion noted in the second part of Article 111 of the Code of Criminal Procedure of the Russian Federation will be applied to him, namely: an obligation to appear (Article 112 Part 2 of the Code of Criminal Procedure of the Russian Federation), a summons (Article 113 of the Code of Criminal Procedure of the Russian Federation) RF), or monetary penalty (Article 117 of the Code of Criminal Procedure of the Russian Federation).
The obligation to appear is a forced delivery by intelligence officers. The basis for this coercive measure is a written order from the investigator, used for persons who deliberately evade appearing on a subpoena. When a police officer carries out a drive, the citizen is informed who and where exactly the delivery is being made. You cannot refuse, since the police will have the right to use special equipment (handcuffs) and force delivery.
The use of an obligation to appear allows the investigative authorities to achieve the effect of surprise without allowing the citizen to prepare for interrogation. The drive procedure should not be interfered with; it can be appealed after execution.
At the initial stage of interrogation, a forcibly delivered citizen must declare the absence of any notifications about the need to appear before the investigator (he did not receive a summons). Also demand the assistance of a lawyer, the right of which belongs to every citizen (Article 48 Part 1 of the Constitution of the Russian Federation, Article 53 Part 2 of the Code of Criminal Procedure of the Russian Federation). The investigator must indicate in writing the request for legal assistance in the interrogation record.
Refusal of the victim to testify
Responsibility for the refusal of the victim to testify is provided for in Article 308 of the Criminal Code.
The prosecutor's office of the Nenets Autonomous Okrug gives the following explanations about the victim's refusal: “the reference to the need to maintain commercial, medical and other types of secrets does not relieve persons from criminal liability.” At the same time, refusal to testify with reference to state secrets is also not grounds for non-testification.
In 2022, the Constitutional Court issued a ruling in the case of verifying the constitutionality of Articles 21 and 211 of the Law of the Russian Federation “On State Secrets” in connection with the complaint of citizen E. Yu. Gorovenko. In it, the Constitutional Court clarifies that the parties to the proceeding cannot be limited in their ability to familiarize themselves with case materials containing state secrets, and also announced the possibility of holding closed meetings and warning the participants in the trial about the non-disclosure of information containing secret data outside the framework of the trial.
Note!
Responsibility will follow if the victim refuses to undergo a judicial examination.
To establish the nature and degree of harm caused to health, mental and physical condition, as well as age, the consent of the victim is not required.
How to behave during interrogation
First of all, ask why they were called. Based on the investigator's response, it may be possible to understand the danger of the situation.
The dialogue with the investigator should be conducted respectfully, addressing strictly “you” and by first name and patronymic. And it doesn’t matter how older you are than the inquiry officer.
Note:
- A witness has the right to testify in a language other than Russian if he speaks it poorly. An interpreter must be provided free of charge (Article 56 Part 4 of the Code of Criminal Procedure of the Russian Federation);
- the witness has the right to petition for the application of state protection measures to him and his relatives (Article 11, Part 3 of the Code of Criminal Procedure of the Russian Federation);
- continuous interrogation lasts no longer than 4 hours, after which a one-hour break is required. The daily duration of interrogation cannot exceed 8 hours (Article 187 of the Code of Criminal Procedure of the Russian Federation).
Often the investigator offers to tell you everything you know about the essence of the case. You shouldn't do this. Ask for specific questions. Don't be talkative - only talk about what the policeman asks.
Maintain a calm tone of speech and do not rush to answer. After listening to the question, pause briefly, then answer. This will prevent the investigator from determining which questions are bothersome to you. If the interrogator tries to rush you with an answer, tell him that you are worried because of the unusual surroundings. It is natural to feel discomfort during an interrogation.
If the question allows, answer “yes” or “no”. Don't give a detailed answer, this is not an exam. If you doubt whether to answer, say “I don’t remember” or “I find it difficult to answer.”
The interrogator may insist on an answer with the phrases “let’s think together” or “you try to remember.” Tell him that you cannot give testimony, the reliability of which you do not consider sufficient (Article 56, Part 6, Clause 2 of the Code of Criminal Procedure of the Russian Federation).
During the interrogation, the investigator will keep a protocol, recording questions that are significant from his point of view and your answers to them. This is his right and duty (Article 166 of the Code of Criminal Procedure of the Russian Federation). If you come with a lawyer, he will also take notes and, based on them, give advice during the interrogation. But even when participating in an interrogation without a lawyer, you also have the opportunity to take notes, since this is not directly prohibited by law.
By taking notes on the main points of the interrogation, you will be able to check with previously stated answers, and at the end of the interrogation, you will be able to compare your notes with the protocol.
Remember that you benefit from anything that gives you time to think about the issue. Write down the interrogation notes slowly, but without delaying the process too obviously. Therefore, when preparing for interrogation, be sure to take a pen and notepad with you.
If, in the event of a change in procedural status from “witness” to “suspect,” you are asked to sign a protocol refusing to have a lawyer, do not sign. The investigator’s phrase “where should I look for a lawyer now, it’s the end of the day (holiday, day off, quarantine, etc.)” is only an attempt to weaken your legitimate legal protection (Article 50, Part 2 of the Code of Criminal Procedure of the Russian Federation).
Never agree to the option of “paying off” - this is a provocation under “giving a bribe” (i.e. under Article 291 of the Criminal Code of the Russian Federation).
What happens after you refuse to testify?
According to Article 308 of the Criminal Code of Russia, refusal by an eyewitness to testify or refusal to undergo an examination by a victim is an unlawful act for which criminal liability is provided.
Note!
The maximum penalty imposed on an eyewitness who refuses to testify is arrest for up to three months.
But the court can choose another punishment option: no more than 360 hours of compulsory labor, a fine of up to 40 thousand rubles, or correctional labor for a year.
Article 51 of the Code of Administrative Proceedings provides for a fine of up to 5 thousand rubles if a witness fails to appear in court without a good reason. The court also has the right to force the attendance of a witness if necessary.
If during the investigation an eyewitness to a crime changes his mind and decides to testify at trial, this will not be a fact that mitigates liability for the initial refusal.
On the contrary, the testimony of witnesses obtained during the preliminary investigation, but not confirmed in court under oath, will not be taken into account by the judge.
