Failure of a witness to appear in court: reasons, consequences

One of the main problems for the courts in recent years is ensuring the appearance of witnesses and defendants, victims - in a word, all participants necessary for the correct conduct of the process. Often the procedure is delayed for a long period of time precisely because a witness fails to appear in court in an administrative case, or even in a criminal one.

The trouble is universal

Just ten years ago, just the word “court” evoked respect and fear among people. This affected the discipline of those involved in the process: failure to appear in court as a witness was extremely rare, and even lateness was recorded very rarely. But these days the court has lost respect, which affects the behavior of the participants. Many are late and do not appear in court without having any important reasons.

What happens in practice? Often, a witness fails to appear in court in a civil case, defendants do not show up for hearings, and victims are late for an unlimited time without any justification. Even lawyers who are interested in the process are often late or miss meetings. This has been noticed more than once by both lawyers and prosecutors. In such a situation, the judge postpones the event. Everything is not so scary if a witness’s failure to appear in court in a criminal or administrative case occurred only once, but the person does not come again and again. Because of this, the case becomes protracted, it leads to judicial red tape, and journalists attack the judge, making him a “scapegoat.”

How long can the interrogation last?

No more than 4 hours without a break (Part 2 of Article 187 of the Code of Criminal Procedure of the Russian Federation) and no more than 8 hours in total during the day.

In this case, the duration of the break cannot be less than 1 hour.

Important! Based on the doctor’s conclusion, a different, shorter duration of interrogation may be established if there are medical indications for this (Part 4 of Article 187 of the Code of Criminal Procedure of the Russian Federation).

For example, if a witness is undergoing hospital treatment for a head injury, heart disease, or other illness that requires rest, the attending physician may limit the questioning to any time or prohibit it altogether until the patient's condition improves.

Note! For minors, different time frames for interrogation are established.

Abroad and here

How is the judicial system organized in other countries? Abroad, they act as follows: there is a government agency responsible for the subpoena. Its employees deliver notifications personally to the participants in the process, receiving their signature as confirmation of receipt of the paper. In such a situation, the consequences of a witness’s failure to appear in court are quite unpleasant - most often large fines. The judicial systems abroad are such that contempt of court is regarded as a challenge to the country and its government.

In Russia, things are still different. Summons are sent by mail, and bailiffs are responsible for ensuring that all interested parties are present at the trial. Ideally, bailiffs should arrange for the appearance in court of even those persons who are trying to avoid attending the trial. The reasons for the witness's failure to appear in court, which are considered acceptable, are communicated to everyone. Nevertheless, time after time, meetings are disrupted due to the lack of participants.

Criminal offense and civil action

If the accused of a criminal offense caused harm to the victim, which is compensated within the framework of civil law relations, for example, compensation for the value of property that the accused disposed of after the theft (robbery, robbery, fraud) at his own discretion, then he also bears civil liability.

During the trial, the investigator, inquiry officer or judge makes a decision recognizing the accused as a civil defendant. In this case, the following coercive measures may be applied to the civil participant in the process:

obligation to appear;
drive unit;
monetary recovery.

However, as a defendant in a civil lawsuit, a person has the right not to testify against himself or his loved ones. A civil defendant may be subject to such enforcement measures if he caused harm to the plaintiff in the course of a criminal offense.

If you become a participant in litigation and doubt your ability to competently represent your interests in court, it is better to seek professional legal assistance.

Addresses and responsibility

Very often the following happens: bailiffs visit the address indicated as the place of residence of the person whose appearance needs to be ensured, but do not find the person there. They write a report about what happened and indicate that it does not seem realistic to implement the resolution. However, the court is forced to solve the problem of non-appearance, postpone the hearings and delay the consideration of the case until the person shows up. Thus, the failure of a witness to appear in court in a criminal or administrative case becomes a headache not so much for the victim as for those responsible for court records.

Peculiarities of interrogation of a minor witness

The interrogation of a witness under 18 years of age is carried out according to general rules, but with some peculiarities:

During the interrogation, the legal representative of the witness has the right to be present - one of the parents or persons replacing them: adoptive parent, guardian, trustee (Part 1 of Article 191 of the Code of Criminal Procedure of the Russian Federation).
If a minor left without parental care and living in an orphanage or boarding school is being interrogated, the head of this institution or another employee to whom the head has granted a power of attorney is invited as a legal representative. Important! If the minor witness is neglected, the legal representative is an authorized employee of the guardianship and trusteeship department.

To participate in the interrogation of a witness under 16 years of age or from 16 to 18 years of age, but suffering from a mental disorder or mental retardation, a teacher or psychologist must be invited (Part 1 of Article 191 of the Code of Criminal Procedure of the Russian Federation).
Important! The interrogation of a minor witness of any age is carried out with the mandatory participation of a teacher or psychologist if we are talking about giving evidence in a criminal case about a crime against the sexual integrity of minors.

A witness under 16 years of age is not warned of criminal liability for giving false testimony and refusal to testify. This can be explained simply: in accordance with Art. 20 of the Criminal Code of the Russian Federation liability for giving false testimony or refusing it under Art. 307 and 308 of the Criminal Code of the Russian Federation begins at the age of 16. Therefore, it makes no sense to warn witnesses under this age about it. But they are explained the need to tell the truth.

The duration of interrogation of a minor witness is less than that of an adult:

Witness age	Maximum duration of interrogation without interruption	Total maximum duration of interrogation during the day
Up to 7 years	30 minutes	1 hour
From 7 to 14 years	1 hour	2 hours
14–18 years old	2 hours	4 hours

The duration of the break is the same as for adults - at least 1 hour.

Prosecution and victim

As a rule, the victim in the judicial process finds himself “in the same boat” with the prosecutor from the state. If we are talking about private processes, then the victim independently defends his position.

In this case, the victim either comes to the trial himself or is visited by an authorized person. If no one appears and the case is classified as criminal, then the consideration can be organized without the injured party, unless, of course, it was previously established that the victim must be present. If there are no good reasons for not attending the hearing of a criminal case of private prosecution, the victim who missed the hearing faces the termination of the proceedings. This behavior of the court is prescribed in the fifth paragraph of the first part of Article No. 24. The situation is similar if the prosecutor from the state abandons his position.

What is interrogation in criminal proceedings

Interrogation is an investigative or judicial action.
It consists of obtaining from the interrogated information relevant to the criminal case. Who can be questioned:

victim;
representative of the victim - a legal entity;
witness;
suspect and accused;
expert and specialist.

In general, the procedure for conducting interrogation is the same for all participants in criminal proceedings (Article 189 of the Code of Criminal Procedure of the Russian Federation). But there are also features for each of them.

Let us dwell in more detail on the interrogation of the witness.

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Witness and failure to appear

A person involved in a case as a witness is obliged to appear at the trial if summoned. It is also obliged to convey exclusively truthful information. This is the legal duty of a citizen, and also the duty as a citizen. If a person tries to evade transmitting information to the court or refuses to do so, if he transmits false data, then it is possible to bring him to criminal liability.

Well, what are the consequences of a witness’s failure to appear in court? Depends on whether there were good reasons for it. If any were present, you will have to prove their reality. If you are absent, you must be prepared to be brought to a meeting against your will. This is allowed by the seventh part of the article, number 56. The court may also impose a fine for the failure of a witness to appear in court. Currently, the amount varies, the maximum is 2,500 rubles.

Questioning a lawyer as a witness

At various venues, the advocacy and legal communities are discussing the legality of interrogating lawyers on certain circumstances related to their professional activities. The most acute problem is the questioning of a defense lawyer in connection with participation in criminal proceedings. As a rule, it is in connection with participation in criminal proceedings as a defense lawyer that the lawyer receives the information that the initiator of the call for interrogation wants to know. Accordingly, lawyers carrying out their professional activities in this area more often than others turn to bar associations for clarification.

At the same time, lawyers rightly point out the absence at the moment of completely clear, specific practical recommendations regarding the actions of a lawyer in a given standard situation. If such recommendations were available, it would not only be easier for a lawyer to navigate this difficult issue, but also easier to explain to the investigator (court) his position regarding a summons for questioning under certain circumstances. The recommendations of the FPA Council (approved by the decision of the Council of the Federal Chamber of Lawyers dated November 30, 2009 (Protocol No. 3), with an addition dated September 28, 2016 (Protocol No. 7)) do not cover all problems that arise in practice, including the issue of the relationship between the right and obligation of a lawyer to testify in a particular standard situation. There are no other official clarifications. The disciplinary practice of bar associations is not uniform. In similar circumstances, different chambers of lawyers make diametrically opposed decisions: from termination of disciplinary proceedings to termination of the status of a lawyer.

I believe that there is a need to formulate and bring to the attention of lawyers a number of simple norms and rules that should be followed in a hypothetical situation. There should not be too many such rules; they should be short and understandable. The justification for the validity of a particular rule should be given in the comments. To start the discussion, I propose the following version of recommendations. Author's comment below.

Recommendations for a lawyer in the event of a summons for questioning on issues related to participation in criminal proceedings:

1. On issues not related to professional activities, a lawyer is subject to questioning as a witness in the usual manner.

2. A lawyer should not appear for questioning without receiving a corresponding summons. After receiving the summons, the lawyer has the right to contact the Bar Council for clarification on further actions. Before receiving clarification from the advice (if requested), the lawyer is not recommended to appear at the place of interrogation (see paragraph 3 of the commentary). The initiator of the interrogation should be notified of the request for advice from a lawyer.

3. As a general rule, on issues related to professional activities, a lawyer is not subject to questioning as a witness. Exceptions to this rule established by law, taking into account the legal positions of the Constitutional Court of the Russian Federation, are given in these recommendations.

4. At the stage of pre-trial proceedings, a lawyer may be summoned for questioning as a witness on issues related to professional activities only on the basis of a court decision (see paragraph 2 of the commentary).

5. A lawyer participating in criminal proceedings as a defense attorney is not subject to being called for questioning as a witness until the issue of his recusal is resolved (during the period of pre-trial preparation - taking into account the possibility of appealing within a reasonable time), the refusal of this lawyer is accepted, or the provision of legal assistance is terminated. other reasons.

6. A lawyer who has ceased to participate in criminal proceedings as a defense attorney may be questioned at the request of the defense, subject to his consent to testify.

7. A lawyer who has ceased to participate in criminal proceedings as a defense attorney may be summoned for questioning at the request of the prosecution (or at the initiative of the court) only on issues of compliance with the legal procedure for procedural actions with the participation of the client during the pre-trial proceedings if issues of admissibility are resolved evidence. In this case, the lawyer must independently decide on the need to testify, taking into account the opinion of the former client and his lawyer. In the absence of reliably expressed consent of the former principal and his lawyer to conduct an interrogation of the lawyer, the most reasonable thing to do is to seek clarification from the council. If it is impossible to contact the council, one should proceed from the presumption of prohibition of disclosing information about the circumstances of the provision of legal assistance.

8. A lawyer who is an eyewitness to the commission of illegal actions by his client during the period of defense that are not related to the current legal proceedings (in which he takes part as a defense lawyer) may be summoned for questioning as a witness in the event of a new one being initiated (not related to where he is the defense attorney) in criminal proceedings against the principal in connection with these events. In this case, the lawyer does not have the right to give evidence without the consent of the client and his defense attorney.

1. Cases where a defense lawyer is called to testify due to circumstances related to professional activities (the initiator, the essence of the alleged testimony)

Cases where a lawyer is called to testify in a criminal case against a client have a different nature.

For example, testimony by a lawyer in accordance with the exceptions established by Part 3 of Art. 56 of the Code of Criminal Procedure of the Russian Federation (Determination of the Constitutional Court of the Russian Federation of March 6, 2003 No. 108-O), i.e. at the request of a lawyer and in the interests of the client, does not cause controversy among lawyers due to the absence of a risk of harming the defense position or violating attorney-client privilege (paragraph 6 of the recommendations).

Also justified is the prevailing opinion in the legal community that it is prohibited to interrogate a lawyer who, at the time of being called for interrogation, is participating in a criminal case on charges of a client and has been summoned for interrogation in connection with its consideration (paragraph 5 of the recommendations). This is due to the inadmissibility of combining procedural functions.

The Decree of the Constitutional Court of the Russian Federation of May 29, 2007 No. 516-О-О states: “The defense attorney does not have the right to participate in criminal proceedings if he has previously participated in it as a witness. This rule cannot prevent the participation in a criminal case of a defense attorney chosen by the accused who has not previously been interrogated during the proceedings, since it excludes the possibility of interrogating the latter as a witness about the circumstances and facts that became known to him in the framework of his professional activities in providing legal assistance, regardless of the time and circumstances of his receipt of such information" (see also the Determination of the Constitutional Court of the Russian Federation of July 6, 2000 No. 128-O).

It is no secret that the scheme of interrogating a defense lawyer as a witness and then disqualifying him is used by unscrupulous officials to remove an unwanted defense lawyer from a criminal case.

In this regard, participation as a defense attorney should exclude the possibility of questioning a lawyer on the current case. Until the termination of his participation in the case, including until the court resolves (including in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation in the case of an appeal against the investigator’s decision during the pre-trial preparation period) the issue of challenging or accepting the refusal of a lawyer in the current process, he should not interrogated regardless of the substance of the subject of interrogation and the consent of the principal, since after interrogation he cannot remain a defender.

After the termination of the lawyer’s participation in criminal proceedings as a defense lawyer, including after resolving the issue of recusal or refusal of the defense lawyer, if it is necessary to interrogate the lawyer at the initiative of the prosecution and the court, the circumstances that served as the reason for calling the lawyer for questioning should be taken into account.

At the moment, there are two exceptional cases of calling a lawyer to testify against his client at the request of the prosecutor (decision of the investigator) or on the initiative of the court about circumstances arising from the professional activity of the lawyer. According to the decisions of the Constitutional Court of the Russian Federation, these cases are an exception to the general rule prohibiting questioning of a lawyer about the circumstances of the provision of legal assistance.

Unlike testifying at the request of the defense, the testimony of a lawyer expected by the initiator of a summons for questioning in this case, to put it mildly, does not always correspond to the interests of the principal.

In my opinion, the removal by the Constitutional Court of the Russian Federation (in the rulings of July 16, 2009 No. 970-O-O and of March 29, 2016 No. 689-O, and also taking into account the Determination of June 6, 2016 No. 1232-O ) witness immunity in terms of the opportunity to ask relevant questions to the lawyer does not in itself mean a reciprocal obligation of the lawyer to answer them. This does not exclude the choice of a lawyer, taking into account specific circumstances (for example, the need to protect against slander in the commission of a crime, a disciplinary offense) in favor of testifying. At the same time, the key guidelines for a lawyer in such a situation should be the opinion of the legal community (explanations of the council on a specific request of the lawyer) and the position of the client (including the former) and his defense attorney regarding the need to question the lawyer. Giving evidence against the principal when the latter denies certain circumstances and events - to a certain extent undermines the foundations of trust inherent in the “lawyer-client” relationship.

The first such exceptional case (clause 7 of the recommendations) is the calling of a lawyer to testify regarding violations of the criminal procedure law committed during the pre-trial preparation period (Decision of the Constitutional Court of July 16, 2009 No. 970-О-О).

From this decision it follows that the court (here – the court) has the right to ask questions to the lawyer regarding compliance with the guarantees provided for by law when conducting procedural actions with his participation. The need to obtain this kind of information arises, as a rule, when considering issues of admissibility of evidence not at the initiative of the defense.

In this sense, the testimony of the lawyer who agreed to give it meets the criteria for admissibility of evidence. Actually, the question of the admissibility of evidence was the subject of the applicants’ appeal to the Constitutional Court of the Russian Federation. The duty of the lawyer to answer them, which corresponds to the right of the court to ask questions, was not considered here. In my opinion, the lawyer in this case has the right not to testify, having made a corresponding statement about the impossibility of testifying due to professional witness immunity and general civil witness immunity provided for in Art. 51 of the Constitution of the Russian Federation (since, depending on the content, the testimony given by a lawyer can subsequently be used against him in disciplinary or other proceedings).

And yet, it should be recognized that recently the opinion of the legal community (as expressed in the disciplinary practice of a number of bar chambers) is such that testimony by a lawyer in such a situation is allowed (although not encouraged). In this case, the right of a lawyer, who was actually publicly accused by a former client of violating professional ethics, is recognized to take advantage of an exception to the general rule on the prohibition of disclosing professional secrets, taking into account the broad interpretation of paragraph 4 of Art. 6 of the Code of Professional Ethics for Lawyers. That is, in this case, the lawyer defends his position in a dispute with the client regarding the proper performance of professional duties. However, this opinion is not shared by all bar associations. Thus, a lawyer who agreed to testify in such a situation was deprived of the status of a lawyer by a decision of the St. Petersburg Bar Chamber (see Review of the disciplinary practice of the St. Petersburg Bar Chamber for 2022). The recommendation to contact the council if the former client does not consent to questioning a lawyer is caused by the lack of uniformity in the disciplinary practice of bar chambers in different regions.

There is a clear opinion that a lawyer who agrees to testify in such a situation must answer only questions regarding the legality of conducting procedural actions with the participation of a lawyer (presence during the procedural action, the validity of the lawyer’s signature, the time of the procedural action, issues of confirmation of authority, etc.) . Answering questions about the content of investigative actions or conversations with the principal is unacceptable in any case.

In this case, the testimony of the lawyer who agreed to be questioned concerns only the issue of admissibility of evidence and the legitimacy of the relevant procedures (for example, the procedure for bringing charges) and does not in itself incriminate the principal (former) of committing a particular act of which he is accused.

I think that here the lawyer must make his own decision (taking into account the opinion of the former client and his defense attorney) about testifying or using witness immunity. It is the lawyer who should set a priority in each specific case: protecting his good name or “do no harm” to the client grasping at straws (personally, the second position is closer to me). Moreover, in the absence of reliably expressed consent of the former principal and his defense attorney to interrogate the lawyer, the most reasonable thing to do is to seek clarification from the council. If this is not possible, one should proceed from the presumption of a ban on disclosure of information about the circumstances of the provision of legal assistance.

The second case (clause 8 of the recommendations) is the calling of a lawyer to give evidence that actually incriminates the client in committing a criminal act (Decision of the Constitutional Court of March 29, 2016 No. 689-O).

This legal position concerns the circumstances of a possible summons for questioning of a lawyer in connection with the unlawful acts of the principal, unrelated to the criminal case in which the lawyer is a defense attorney. Such interrogation also does not occur at the initiative of the defense.

Unlike calling a lawyer to testify on procedural issues, in this situation the lawyer is asked to give testimony, including about the event of the act, the person’s involvement in its commission and other circumstances that must be proven in a criminal case. Thus, the testimony of a lawyer expected by the initiator of the summons for questioning in this case directly incriminates the client (in another case) of committing a crime and can be used as the basis for a conviction as evidence on the merits of the charge.

I think that in this case, a lawyer can testify only with the consent of the client and his defense attorney, since testimony against the client, albeit in a “parallel” case, undermines the very foundations of trust. The legal community, in my opinion, should take an extremely tough position, strictly prohibiting a lawyer from giving evidence in the absence of the consent of the client (former client) or without a positive explanation from the council of the bar association at the corresponding request of the lawyer.

In this part, it is also necessary to focus on the clarifications of the FPA RF Commission “On the issue of a lawyer making public information about crimes or other offenses.” The decision of the FPA Council dated June 28, 2022 clarifies the situation when a lawyer, while carrying out his professional activities, unwittingly becomes a witness to an illegal act, which has not yet become known to a law enforcement agency, and without the initiative of the lawyer, it may not become known. The case considered in the Decree of the Constitutional Court of the Russian Federation of March 29, 2016 No. 689-O concerns the interrogation of a lawyer at the initiative of the investigation on the circumstances of an already identified unlawful act (i.e., an investigation is underway in a criminal case against the client of the lawyer, who, as a defender of this person in another case, he was an eyewitness to the commission of a possibly unlawful act by this person). However, the chain of logical reasoning about undermining trust in a lawyer, given in the said explanation of the Council, also applies to a situation where a lawyer, without the consent of the client (former client), testifies against him.

The argument that the testimony of a lawyer in a particular situation is key (for example, he was the only eyewitness to the act committed by his client), and therefore the lawyer is supposedly obliged to answer questions in the interests of justice, in my opinion, are unacceptable.

After all, it is impossible to hold accountable for refusing to testify a person who has the information necessary for the investigation regarding himself or a close relative (Part 1 of Article 51 of the Constitution of the Russian Federation), even if this information is exclusive. The commission of a crime (i.e. an act that clearly goes beyond the scope of private and family life) by one close relative in the presence of another close relative and even in relation to him does not prevent the latter from exercising the right provided for in Art. 51 of the Constitution of the Russian Federation. At the same time, no one has the right to interfere with the free choice of such a person to testify against a close relative. The degree of trust in the relationship between a lawyer and his client in matters related to the provision of legal assistance, and society’s expectations in this regard from the institution of the legal profession are akin to the degree of trust and expectations from relationships between close people (naturally, in our case, only on issues arising from professional activities lawyer). The right of a lawyer not to testify against his client (former client) cannot be sacrificed just because there is not enough “quality” evidence against him. If you limitlessly elevate the interests of justice (and public safety) above other legally protected institutions, then sooner or later the question will arise about limiting the immunity of a clergyman for interrogation about the “secret of confession.”

2. Summoning a lawyer for questioning only by court decision

In my opinion, lawyers should not be recommended to appear for questioning without a court order.

Taking into account the different procedures for making a decision to call a lawyer for questioning as a witness (about circumstances related to professional activity) during the trial or at the pre-trial stage, they should be divided according to the degree of risk for the institution of attorney-client privilege. If, during a judicial review, such a decision is made openly, publicly, taking into account the opinions of the parties, and the interrogation of the lawyer itself takes place in a court hearing with the participation of the parties, then law enforcement officers call the lawyers for interrogation without preventive (preliminary) judicial control. In the context of such “office” decisions, a premature and unfounded conclusion is often made that certain circumstances, to clarify which a lawyer is called, do not relate to information protected by attorney-client privilege. The risk is increased by the closed nature of the interrogation procedure at the pre-trial stage.

Meanwhile, the investigator’s conclusion about the need to interrogate a lawyer is often not obvious, including to the lawyer himself who is subject to interrogation.

Currently, Federal Law No. 73-FZ of April 17, 2022 has made changes to the Code of Criminal Procedure of the Russian Federation (new paragraph 5.2, part 2, article 29; article 450.1 have been introduced) in terms of conducting a search (as well as seizure and inspection) in lawyer’s offices formations, providing for a preliminary court decision, and the utmost specification of the subject of the search, and the presence of an observer (representative) from the bar association.

A similar (or similar) algorithm, in my opinion, should be applied in the case of calling a lawyer for questioning at the pre-trial stage.

Norms clauses 2 and 3 art. 8 of the Federal Law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession in the Russian Federation” (hereinafter referred to as the Law on the Legal Profession) literally (“cannot be summoned and questioned as a witness”) indicate a prohibition not only of interrogation lawyer, but also “summoning” him for questioning, and carrying out investigative actions and operational measures against the lawyer involves issuing a court decision.

From the legal positions of the Constitutional Court of the Russian Federation (Resolution No. 33-P of December 17, 2015, determinations of the Constitutional Court of the Russian Federation of October 21, 2008 No. 673-O-O, dated November 8, 2005 No. 439-O) it follows: in matters of legal secrets (in this case, the witness immunity of a lawyer), the priority of legislation on advocacy and the legal profession over the Code of Criminal Procedure of the Russian Federation is obvious.

Interrogation is an investigative action. The purpose of a summons for questioning is to obtain information related to the subject of the investigation from the person who has it, i.e. by its nature, as in the case of a search (seizure, inspection), this is the same activity of detecting and seizing information necessary to establish certain circumstances relevant to the investigation. The difference is that in this situation, information (known to the witness) is not materialized in objects and documents, but becomes “tangible” only after proper recording of the oral story of the interrogated person.

If the information carrier is a person endowed with immunity by law, then it would be logical to use the same legal procedures to obtain the necessary information from him that are provided for obtaining the required material objects (objects and documents).

A systematic understanding of the legal provisions on lawyer immunity for interrogation involves calling a lawyer for interrogation only by allowing the court to resolve the request for such and issuing an appropriate reasoned decision. At the present time, in the absence of such a provision in the Code of Criminal Procedure of the Russian Federation, an unacceptable, in my opinion, practice has developed, when the decision of the investigator (inquirer) to call a lawyer for questioning is not only not subject to judicial control, but is not at all clothed in the form of a reasoned procedural document (resolution in accordance with Part 4 of Article 7 of the Code of Criminal Procedure of the Russian Federation), which significantly complicates an objective assessment of the true motives for the decision to call a lawyer for questioning.

Let me remind you that the Ruling of the Constitutional Court of the Russian Federation (dated July 16, 2009 No. 970-О-О) refers to the interrogation of a lawyer by the court, and not at the pre-trial stage, i.e. The decision on the possibility of questioning a lawyer in a specific situation is made by the court, taking into account the opinions of the parties to the proceeding.

Another Definition of the Constitutional Court of the Russian Federation (dated March 29, 2016 No. 689-O) contains the following statement: “the law does not imply that the investigator has the right, without sufficient factual grounds, to call the defense lawyer involved in the case for questioning as a witness,” as well as an indication that that resolving the issue of the validity of calling a lawyer for questioning in a particular case requires an investigation of the factual circumstances of the case.

The requirement to study certain factual circumstances of the case, as well as to establish the presence of sufficient factual grounds, allows us to conclude that it is necessary to issue a reasoned decision and an independent (read: judicial) assessment of the validity of the investigator’s decision to call a lawyer for questioning.

Leaving the possibility of resolving the issue of “sufficiency of factual grounds” for calling a lawyer (defense side) for questioning only at the discretion of the investigator (prosecution side) without a preliminary independent assessment by the court may upset the balance of rights and obligations of the parties in adversarial criminal proceedings and lead (in the worst case scenario) ) irreparable violation of the right to defense and unjustified disclosure of confidential information.

At the same time, the need to distinguish between information that is really necessary for the investigation and that is not protected by law, which a person with additional professional guarantees has the right to disclose, requires, at a minimum, preliminary familiarization with the set of issues to be clarified.

The conclusion suggests itself that the decision of the investigator (inquiry officer) to call a lawyer for questioning must be presented in the form of a reasoned procedural document (resolution in accordance with Part 4 of Article 7 of the Code of Criminal Procedure of the Russian Federation) and be the subject of judicial control.

Thus, preliminary judicial control of the investigator’s decision to call a lawyer for questioning, based on the spirit of the law, is mandatory. When considering the investigator's petition, the court should, with the participation of the lawyer, establish the nature of the information known to him on the controversial case, its relevance to the subject of proof (to exclude interrogation on circumstances clearly not related to the subject of proof) and the need to interrogate the lawyer if there is a possibility of establishing the circumstances known to him by others less controversial methods. In this case, the lawyer could submit to the court an explanation from the Bar Chamber, given to the lawyer at his request in accordance with subsection. 19 clause 3 art. 31 of the Law on Advocacy. In addition, a representative of the bar could be summoned to the court hearing to provide a competent opinion on the presence or absence of circumstances related to attorney-client privilege. As an option, you can also consider the presence of a representative of the bar association when questioning a lawyer as a witness about the circumstances related to his professional activities.

3. Actions of a lawyer when summoned for questioning

Upon receipt of a subpoena for questioning as a witness, an attorney should take all reasonable steps to reduce the risk of a possible violation of attorney-client privilege.

In accordance with sub. 19 clause 3 art. 31 Part 3 of the Law on the Bar the Council of the Administrative Board provides an explanation at the request of a lawyer who finds himself in a difficult ethical situation. According to paragraph 4 of Art. 4 of the CPEA, the AP Council cannot refuse such clarification. Norm clause 3 art. 18 CPEA guarantees that a lawyer will not be subject to disciplinary liability when complying with the instructions of the AP Council.

Using their right, lawyers are increasingly turning to the council for clarification.

Circumstances and failure to appear

What is a valid reason for a witness not to appear in court? Current legislation, unfortunately, does not contain an exhaustive list of such circumstances that can be assessed as valid. This becomes an obstacle to correct paperwork. As experienced lawyers object, it is impossible to take into account all possible disrespectful and valid reasons and document them at the state level. Others say this is not required.

The Criminal Code contains a definition of a valid reason, suggesting that any reason that is justified and does not violate laws and rights, does not depend on the will of the citizen himself and turns appearance into a process difficult or unrealistic is considered as such.

Online questioning of a witness

Questioning of a witness via video conferencing (VCC) is possible only at the trial stage. Article 278.1 of the Code of Criminal Procedure of the Russian Federation allows the court to make such a decision if necessary. The law does not specify what caused the need, but based on practice, it is:

The remoteness of the witness's residence or stay from the place of proceedings. Simply put, the witness lives or has been in another city for a long time.
The presence of a witness in custody or in prison.

The interrogation under the videoconferencing system is carried out from the courthouse at the location of the witness, from a pre-trial detention center or a colony.

Important! It is impossible to interrogate a witness via videoconferencing from home or any other place.

The explanation is simple: in such conditions it is impossible to establish the identity of the witness.

Otherwise, the procedure for online questioning of a witness is the same as the procedure for in-person questioning.

What are they?

A witness does not need to bear responsibility for failure to appear in court if the person fell ill and because of this could not come to the hearing of the case. In addition, the court forgives those who did not come due to natural disasters and transport collapses. The following are considered valid reasons:

business trip;
illness, death of a relative;
lack of resources (money) to use transport.

The listed situations are obvious difficulties that prevent a person from attending a meeting.

Answers from lawyers 5

If your testimony is essential for the court to consider the case on the merits, the court will postpone hearings until you appear.

Criminal Procedure Code of the Russian Federation. Article 272. Resolution of the issue of the possibility of considering a criminal case in the absence of any of the participants in criminal proceedings. If any of the participants in criminal proceedings fail to appear, the court listens to the opinions of the parties about the possibility of trial in his absence and makes a ruling or resolution on postponing the trial or its continuation, as well as summoning or bringing in an absent participant.

Forced drive is quite possible. For failure to appear without good reason - a fine of about 1000 rubles. If you fail to appear again, you may be subject to arrest (i.e., forcibly brought to court). Giving evidence in court is an obligation that does not depend on your consent.

“CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” dated December 18, 2001 N 174-FZArticle 113. Drive1. In case of failure to appear when summoned without good reason, the suspect, accused, as well as the victim and witness may be brought in.2. The bringing consists of forcibly bringing a person to an inquiry officer, investigator, prosecutor or to court.3. If there are reasons that prevent them from appearing when summoned on time, the persons specified in part one of this article shall immediately notify the authority by which they were summoned.4. The decision of the inquirer, investigator, prosecutor, judge or court ruling on the arrest before its execution is announced to the person who is subject to the arrest, which is certified by his signature on the resolution or ruling.

There are some restrictions on the drive design. Firstly, in accordance with Part 6 of Art. 113 of the Code of Criminal Procedure of the Russian Federation, minors under the age of 14 years, pregnant women, as well as patients who, for health reasons, cannot leave their place of stay (subject to certification of this circumstance by a doctor) are not subject to transportation.

Article 308. Refusal of a witness or victim to testify. Refusal of a witness or victim to testify is punishable by a fine in the amount of up to forty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to three months, or by compulsory labor for a term of one hundred twenty to one hundred. eighty hours, or correctional labor for up to one year, or arrest for 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.

Failure to appear is not considered a refusal to testify.

Not valid reasons

Failure of a witness to appear in court is regarded as contempt of court and may cause a fine to be imposed in cases where a person simply did not want to attend the event or does not want to testify, which is due to self-interest, disrespect, distrust, and reluctance to act without profit for oneself.

In some cases, the victim may refuse to attend the trial because he fears retaliation from the defendant, his friends and relatives. If the court finds such a danger real, this is considered a valid reason. If the judge considers the threats to be far-fetched and the fear to be unfounded, then the reason will be reclassified as disrespectful. However, if there really is a danger, measures are usually taken to protect the person who may be in danger. For example, an interrogation is carried out in front of a limited number of people, using a technique that does not allow visual fixation of the victim. Finally, the court hearing can be organized behind closed doors.

Failure of parties to appear in criminal proceedings

The Code of Criminal Procedure defines the possibility of considering proceedings in the absence of participants. According to the Criminal Code, the appearance of the accused in court is a condition for the hearing of the case. In his absence, the trial will be postponed. In criminal proceedings, the defendant is subject to forced transport. The measure of restraint may be changed for him, for example, he may be placed under arrest. This happens when the reasons for not attending a meeting are unclear or do not qualify as valid.

According to Article 247 of the Code of Criminal Procedure, the accused has the right to file a motion to consider the case in his absence in the courtroom. Such a request must be submitted in advance.

Failure to appear at a court hearing in criminal proceedings may be due to the absence of the accused in Russia and his reluctance to come. The court makes a decision to consider the case in the absence of the defendant. The norm is valid in the absence of a verdict in relation to this case in a foreign country.

The absence of a victim is not a standard situation. He has the right to defend his interests in court of any instance. In addition to defense, he can influence the course of the case with the help of evidence. According to the Code of Criminal Procedure, the case is considered in the presence of the victim and his representatives. The victim has the right not to attend the meeting voluntarily. Under some circumstances (Article 249 parts 2, 3) a hearing without the presence of the victim is possible. The judge has the right to oblige the victim to appear in the courtroom for the consideration of the case. In a private prosecution, if the victim is not present at the hearing and the petition is not submitted, the criminal proceedings will be terminated (Article 24, Part 2 of the Code of Criminal Procedure).

The victim is notified of the upcoming hearing in the summons. If it was not served, the victim's failure to appear is not a violation of the law. In preparation for a hearing in criminal proceedings, the victim's appearance is verified by the court. The hearing of the case may be postponed.

Inaccurate information as a reason not to come

Quite often, a witness’s failure to appear in court is explained by the fact that the court has inaccurate and unreliable information. For example, a conclusion or an indictment contain incorrectly and illegibly written by hand information about the witness’s place of residence.

Investigators make mistakes when filling out personal data. Addresses and names are indicated incorrectly. Persons whose presence at the trial is required cannot be notified in a timely manner due to such technical errors, and as a result, the witness fails to appear in court.

Where is the interrogation taking place?

As a general rule, interrogation is carried out at the place of investigation (Article 187 of the Code of Criminal Procedure of the Russian Federation). In other words, in the investigator's office.

But the investigator has the right to interrogate the witness at his place of residence, that is:

in a place of residence or vacation (hotel, hostel, etc.);
place of treatment (hospital, sanatorium);
place of detention or serving a sentence (yes, witnesses in the case can include those arrested or convicted);
at the place of work or service (often practiced when investigating crimes committed in organizations);
place of study, etc.

To come or not to come?

The obligations of those passing through the court as witnesses are described in the Criminal Code in Article 56, namely, in the first paragraph of the sixth part and in the seventh part. From this we can learn that good reasons are those that are sufficient to justify themselves and have grounds. In addition, the reason in the law is formulated as a certain condition that can explain a person’s actions. As for failure to appear, here the reason is the basis that allows for inaction, that is, non-attendance.

It follows from the law that a person is simply obliged to come to court. But you can skip the meeting if a person has to care for a sick person or is so sick that he is physically unable to attend the trial. If the summons was not received or did not arrive on time, the witness also finds himself in a situation where he simply cannot attend the meeting, and his guilt is removed. Some other circumstances not directly stated in the law may serve as justifications if they are truly serious. A witness who does not come to the trial can try to explain everything formally, with papers, by writing an appeal in the appropriate form. And yet, if possible, you should come to the meeting, thereby fulfilling your duty as a citizen of the country.

The procedure for calling for questioning by an investigator

Article 188 of the Code of Criminal Procedure of the Russian Federation requires that a witness be summoned for questioning by subpoena. It should indicate:

surname, name, patronymic of the witness;
his procedural status (usually the wording “as a witness” is used);
date, time and place of interrogation;
surname, initials of the investigator;
consequences of failure to appear for questioning without a valid reason.

Here you can find a summons to summon a witness for questioning, as well as a completed sample:

The summons must be served against the signature of:

to the one being called;
his adult relative;
to the administration at the place of work or study;
to the command of a military unit if a serviceman is called in for questioning.

An alternative option is to send the summons by mail.

Important! If a minor under 16 years of age is called as a witness, the subpoena is served on his legal representatives or through the administration at his place of work or study.

Does a summons always arrive?

Not always. There can be many reasons - from the banal dishonesty of the investigator, who simply did not send a summons, to the loss of a postal item.

In addition, in practice, investigators often ignore the requirements for a summons for questioning, preferring to notify the witness of the need to appear in other ways: by phone, SMS, via instant messengers or email.

The reason is clear: the period of investigation of the case is limited, and delivery of the summons takes time, especially if sent by mail.

Such notification cannot be considered a violation of the law, but if a witness fails to appear, coercive measures cannot be applied to him (see, for example, the ruling of the Supreme Court of the Russian Federation dated September 23, 2008 No. 81-O08-85).

Even in the absence of a subpoena, we recommend that you still come to the investigator and give evidence: failure to appear, of course, will have no consequences, but it will only delay the interrogation, but will not cancel it.

Is it possible to refuse to appear for questioning?

If there is a subpoena, you can't. According to Part 3 of Art. 188 of the Code of Criminal Procedure, the witness is obliged to appear and testify. Or inform in advance about the reasons for non-appearance, if any.

We are talking about good reasons - reluctance or remoteness to live within the same locality are not such reasons.

The law does not say how exactly the investigator should be notified of the reasons for failure to appear. Therefore, this can be done in any way: by hand, by telephone, fax, mail, etc.

What is considered a valid reason for failure to appear?

There is no list of valid reasons for failure to appear before an investigator or in court in any legal act. But judicial and investigative practice recognizes as such:

natural disasters and catastrophes;
death of a close relative;
wedding on the day of the call;
failure to receive a summons in a timely manner;
illness of the witness himself or his family members whom he must care for;
long unforeseen interruption in traffic;
other circumstances that objectively deprive the witness of the opportunity to come for questioning.

In this case, the reasons must be confirmed: a certificate from a doctor, a sick leave certificate, a death certificate or marriage registration, etc.

In practice, investigators usually accommodate witnesses and arrange an interview at a time convenient for them. Therefore, the main thing is to promptly inform about the impossibility of appearing and agree on a meeting date.

What happens if you don't show up for questioning?

The investigator has two tools to influence a witness who evades appearance:

Arrest is the forced delivery of a witness to the investigator. Does not apply to minors under 14 years of age (Article 113 of the Code of Criminal Procedure of the Russian Federation).
Monetary penalty for failure to fulfill the obligations imposed by the criminal procedure law. Imposed by the court at the request of the investigator, amount - up to 2500 rubles. (Article 117 of the Code of Criminal Procedure of the Russian Federation).

If the witness is sick or on a business trip

Regarding illness, everything is obvious: if there is a supporting document, it is a valid reason for failure to appear.

But even if the witness did not see a doctor, the investigator can accommodate him. In practice, the interrogation is usually postponed to another time or the investigator comes to the witness’s home. This is not prohibited by law.

But it should be remembered that such a concession is the investigator’s right, and not his obligation.

A business trip to another city is also recognized as a valid reason for failure to appear for questioning. But here everything depends on its duration: if the business trip is short-term, the investigator will wait for the witness to return. If it is long-term, he will most likely send an order for interrogation to the city where the witness is staying or go there himself.

If the business trip is to another country, the investigator again has two options:

Send an order to provide international legal assistance in accordance with Art. 453 Code of Criminal Procedure of the Russian Federation. It makes sense if the business trip is very long, and the witness’s testimony is important for the criminal case, since the execution of such a request takes several months.
Wait for the witness to return to Russia.

The investigator does not have the right to conduct investigative actions, including questioning a witness, outside the country.

Is it possible to refuse interrogation for security reasons?

Unfortunately, the law does not provide for such a basis. But the investigation has tools to ensure the safety of witnesses. In particular, by virtue of Part 9 of Art. 11 of the Code of Criminal Procedure of the Russian Federation, the investigator can remove all data about his identity from the criminal case.

Technically, this is done as follows: fictitious data is indicated in the interrogation protocol, and the real data is packed in an envelope, sealed and stored in the criminal case.

That is, the accused, when familiarizing himself with the criminal case, sees only a protocol with fictitious data of the witness. The accused and his defense attorney are not familiar with the decision to keep secret the identity of the witness, which contains the real data.

At the trial stage, the court, in accordance with Part 5 of Art. 278 of the Code of Criminal Procedure of the Russian Federation, under the same circumstances, he may not disclose the witness’s data at the meeting, and may also interrogate him under conditions that exclude visual observation by other participants in the process.

How are the meetings announced?

If you think that you may be a witness in some case, try not to miss the notice of the process. This is usually sent through the postal service. As a rule, this is a registered letter with notification, and upon receipt you will have to sign. The notice is sent back to the court, allowing it to be documented that the mail was delivered to the addressee.

By law, you are not required to use only paper mail. You can also use a fax or send a telephone message or telegram. Any delivery or means of communication are considered suitable if they allow witnesses and other participants to be notified in a timely manner about the place and time of the meeting. The most important thing is a documentary, official recording of the fact that the data was transferred to the addressee.

How many times can a witness be called in for questioning?

As much as necessary. The number of interrogations is not limited by law. Why might one time not be enough? There are many reasons. For example:

the first interrogation was carried out in violation of the Code of Criminal Procedure, therefore it is necessary to interrogate the witness again;
new circumstances have arisen on which questions need to be asked - an additional interrogation of the witness is being carried out;
the investigator does not trust his predecessor, who initially questioned the witness, etc.

Some nuances

If it is necessary to bring a child under 16 years of age to court as a witness, then a notice is sent to the parents, since they will have to accompany the child to the law enforcement agency. If there are no parents, then these will be other representatives of the minor who have the right to do so under the law.

In some cases, the court entrusts one person with a subpoena and then gives it to another. In this case, the document is given directly to your hand. After some time, such a person will have to present to the judge the counterfoil of the notice or a copy on which the addressee noted that the summons was received. If a person refuses to accept the notice, it is generally accepted that the data was transferred to him on time anyway.

Can a subpoena be served through other persons?

Serving a subpoena to call a witness is possible in the following cases:

Temporary absence from place of residence;
On behalf of the investigator, it can be handed over for delivery to individuals or organizations. The order must be formalized;
For military personnel - through the command of the unit;
For minors, through legal representatives or the administration of an educational institution or work, in cases where there is an obstacle (for example, the father interferes with the interrogation without objective reasons) on the part of the legal representatives, the witness may be called through other persons;

Temporary absence is another vague concept in the law. Temporary absence means that a person is absent from his place of residence, but can return to his place of residence and arrive in time for the date and time of interrogation.

In case of temporary absence from the place of residence, a summons may be served:

to a family member of the witness - a relative, mother, father, adult child (the only condition is living together as a family member and reaching adulthood, the degree of relationship is not important);
administration at the place of work - the administration is not served with a summons, but is handed over to the employee for delivery;

Changing your address is not a reason not to participate

If a certain person, a witness in the case, first indicated one address for communication, and then changed his place of residence without notifying the court, then it is generally accepted that he himself is responsible for receiving mail at the previous address. To avoid misunderstandings, it is necessary to promptly provide the court with information about the new address for sending correspondence.

The court sends the documents to the address that the person last indicated as a contact address. The document is considered to have been delivered even if the person no longer lives in the apartment. A person may be forcibly brought to a meeting if he missed the event twice without good reason. The person is brought to court, and sometimes to the inquiry officer or investigator.

What happens if you change the readings

If there are significant differences between the testimony given by a witness during the investigation and in court, the interested party will almost certainly file a motion to have the first testimony read out.

The witness will have to explain what caused this contradiction. If it is established that the witness deliberately misled the investigator or misled the court, he faces criminal liability under Art. 307 of the Criminal Code of the Russian Federation for giving knowingly false testimony.

Important! Liability will not arise if the witness voluntarily reports the falsity of his testimony (note to Article 307 of the Criminal Code of the Russian Federation).

Does it make sense to change testimony in court?

Yes, but only if false testimony was given during the investigation. Or if at the time of interrogation by the investigator the witness was mistaken about any circumstances, and the court became aware of this.

In both cases, the witness does not face liability for giving false testimony.

It is not worth changing testimony from reliable to false: firstly, the witness risks earning a criminal record under Art. 307 of the Criminal Code of the Russian Federation, and secondly, this is unlikely to help. The testimony of a witness is not the only evidence in a criminal case, and the court evaluates all the evidence in its entirety. Therefore, the judge will take as a basis those testimonies that fit into the overall picture, and not those that were given last.

Documents are the key to wallet security

So, as stated above, an unexcusable reason for failure to appear may serve as a reason to issue a fine. Usually it varies from one thousand to two and a half; the judge chooses specific figures based on the circumstances of the case. It is not uncommon for unfortunate witnesses to try to justify themselves by saying that they simply did not see the notice in the mailbox, and therefore were unable to receive the summons on time and find out about the place and time of the meeting. For the court, such justification means absolutely nothing, so you should not hope for leniency. The only thing that can save you in such a situation is the presence of a document officially confirming that the reason for non-appearance was sufficiently valid.

On the other hand, the judge usually issues a fine when the situation is regarded as an insult to the state and the highest authority. Repeated failure to appear is almost always a good enough reason to impose a fine.

We transfer - we save money

If you have official important reasons that do not allow you to attend the meeting, you can write a special petition in which you ask to consider the possibility of postponing the meeting to another time. The court will consider it and may satisfy it if the cause is death, illness of a relative and other reasons listed above. Information should be sent in advance.

If the person’s testimony is considered sufficiently significant, then the meeting is postponed to another date, both in case of failure to appear, which was notified in advance, and in case of actual absence. The alternative is to continue the case. The court has the right not to make public the testimony of a person if he does not appear at the hearing of the case. However, the prosecutor may insist on classifying the circumstances as extraordinary, and then asks to read out the latest information received from the absent person. The judge will decide how this ends.

The defendant as a participant in the court

The defendant is a party to the lawsuit who has in some way violated or infringed the rights of the plaintiff. Any capable citizen can be the defendant.

Persons under the age of 14 are not subject to criminal liability and cannot act as defendants. Their parents or guardians will speak for them in court. Minors - from 14 to 18 years old - are responsible for their own actions.

The term “defendant” applies to administrative and civil law. If the claim is satisfied, the defendant is punished by being forced to fulfill certain obligations, for example, payment of established material damages in favor of the plaintiff, fulfillment of alimony obligations and other property claims.

If the defendant is incapacitated but has caused harm to the plaintiff, then the defendant is the guardian or legal representative. The defendant essentially has the same rights and obligations and participates in all stages of the legal process as the plaintiff.