Commentary on Article 79 of the Code of Criminal Procedure of the Russian Federation
1. According to Part 1 of the commented article, the testimony of a witness is the information provided by him during an interrogation conducted during a preliminary investigation or trial.
2. The testimony of a witness, along with other information, is admitted as evidence in a criminal case (clause 2, part 2, article 74 of the Code of Criminal Procedure of the Russian Federation).
3. A witness is a person who may be aware of any circumstances that are important for the investigation and resolution of a criminal case, and who is called to testify (Part 1 of Article 56 of the Code of Criminal Procedure of the Russian Federation). A resolution is not issued to recognize a person as a witness, and the person acquires the rights and obligations of a witness from the moment he is notified of the summons to the investigator, interrogating officer or to the court.
4. Not only eyewitnesses of the crime committed, but also persons who became aware of information relevant to the criminal case from other sources can act as witnesses.
5. If a person was not questioned as a witness during the preliminary investigation, then, at the request of the parties, he may still be summoned to court for questioning as a witness during the trial.
6. Since the investigator is carrying out the criminal prosecution of the person concerned, he can be questioned in court as a witness only on the circumstances of a particular investigative action when deciding on the admissibility of evidence, and not for the purpose of clarifying the content of the testimony of the person he interrogated.
7. The provisions in accordance with which a person is interrogated as a witness are regulated by the following articles of the Code of Criminal Procedure of the Russian Federation: Art. 187 “Place and time of interrogation”; Art. 188 “Procedure for summoning for interrogation”; Art. 189 “General rules for interrogation”; Art. 190 “Interrogation Protocol”; Art. 191 “Peculiarities of interrogation of a minor victim or witness”; Art. 278 “Interrogation of witnesses.” When questioning a witness, the rules contained in other articles of the Code of Criminal Procedure of the Russian Federation are used: Art. 279 “Use of written notes and documents by victims and witnesses”; Art. 280 “Peculiarities of interrogation of a minor victim and witness”; Art. 281 “Disclosure of the testimony of the victim and witness.”
8. The subject of the witness’s testimony is established in part 2 of the commented article. As a general rule, a witness may be questioned about any circumstances relevant to the criminal case. The legislator defined the subject of the witness's testimony more broadly than the subject of the victim's testimony (Part 2 of Article 78 of the Code of Criminal Procedure of the Russian Federation), because we are talking about any circumstances, and not just those that are subject to proof in criminal proceedings.
9. Since at the time of the summons the witness is not aware of the possible subject of his testimony, he does not have the right not to appear when called by the investigator or to refuse to testify in advance, explaining this by his ignorance.
10. In accordance with Part 1 of Art. 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself or his close relatives, the circle of whom is determined by federal law. However, with consent, the person may be questioned about such circumstances. The testimony of a witness, which was obtained after this constitutional provision was explained to him, is recognized as admissible evidence.
11. In any case, including if the person consents to testify, information received from the persons listed in Part 3 of Art. 56 Code of Criminal Procedure of the Russian Federation.
An exception is the case when certain information is known to members of the Federation Council and deputies of the State Duma. By virtue of clause 5, part 3, art. 56 of the Code, they cannot be interrogated without their consent about the circumstances that became known to them in connection with the exercise of their powers, provided that such consent is obtained, their testimony is admissible evidence and can be used in criminal proceedings.
12. The testimony of a witness has evidentiary value regardless of the age of the person, provided that the procedure for his interrogation is followed. At the same time, when assessing his testimony, one should take into account the influence on its volume and content of the age characteristics of the witness. Thus, the court should be especially critical of the testimony of a minor witness, taking into account the possibility of his misconception about the reported facts.
13. Among other things, the subject of the witness’s testimony includes information about the identity of the accused, the victim and his relationships with them and with other witnesses. This emphasizes that a person can also be questioned based on circumstances that make it possible to characterize certain participants in criminal proceedings. Such information is of particular importance in criminal proceedings against minors, since in addition to the general circumstances that must be proven (Article 73 of the Code of Criminal Procedure of the Russian Federation), the living and upbringing conditions of the minor, the level of mental development and other characteristics of his personality must also be established (clause 2 Part 1 of Article 421 of the Code).
14. Information about the identity of the accused is directly included in the list of circumstances subject to proof (clause 3, part 1, article 73 of the Code of Criminal Procedure of the Russian Federation). Information about the identity of the witness is not mentioned in the list of circumstances to be proven. Information about the relationship between a witness and other participants in criminal proceedings, as a rule, has evidentiary value in cases where it is necessary to verify the reliability of the testimony of a witness or other participants.
15. The testimony of a witness is subject to verification and evaluation according to the same rules as the testimony of other participants in criminal proceedings. If the objectivity of a witness's testimony is in doubt, then it cannot be used to justify procedural decisions in a criminal case.
Announcement of witness testimony without the witness himself
The convicted person filed a complaint with the Constitutional Court of the Russian Federation, in which he asked that the provisions of Part 2 of Art. 281 of the Code of Criminal Procedure of the Russian Federation, which establishes the grounds for the court to make a decision to read out the testimony of a witness who is not present at the hearing. According to the applicant, the norm “does not establish a list of investigative actions, the implementation of which at the stage of preliminary investigation allows the suspect, the accused to challenge the testimony given against him by a witness, to exercise the right to interrogate such a witness and refute his testimony, and thereby, being vague, allows for a formal approach to its interpretation and arbitrary application.”
The reason for the appeal was that the applicant was found guilty of intentionally causing grievous bodily harm, resulting in the death of the victim through negligence. The verdict was based on the testimony of a witness given during the preliminary investigation, which was read out at the hearing in the absence of the witness himself, since it was not possible to establish his whereabouts to summon him to court. The defense objected to the reading of the testimony, citing the illegality of this action, but the court found these arguments unfounded. The court indicated that every effort was made to call the witness, and his interrogation was previously carried out in compliance with the requirements of the criminal procedure law and his testimony is consistent with other testimony and materials of the case.
The appellate court upheld the verdict, noting that the witness identified the convict as the person who committed the crime against the victim, and the convict and his lawyer were present during the identification and had the opportunity to make statements or comments related to the witness’s explanations. The transfer of cassation complaints to the regional court and to the Judicial Collegium for Criminal Cases of the RF Armed Forces was refused.
Having examined the complaint, the Constitutional Court recognized it as not subject to further consideration at a meeting of the Constitutional Court of the Russian Federation, since a final decision in the form of a resolution is not required to resolve the issue raised by the applicant.
The Constitutional Court of the Russian Federation noted that the disclosure of witness testimony is considered an exception and is allowed only in cases provided for by law (Part 2 of Article 240, Article 276, Article 281 of the Code of Criminal Procedure of the Russian Federation). At the same time, Art. 281 of the Code of Criminal Procedure of the Russian Federation does not provide for the possibility of a broad interpretation of cases when it is permissible to read out in court testimony previously given by witnesses who were absent from the court hearing. The disclosure of such testimony, the Court pointed out, should not limit the rights of the accused to effective judicial protection, which is guaranteed, among other things, by Art. 278 and 281 of the Code of Criminal Procedure of the Russian Federation, which do not allow exceptions from the established procedure for evidence in criminal cases. In particular, a conviction can be based only on evidence that does not raise doubts about its reliability and compliance with the law. When reading out the testimony of absent witnesses, the accused must be given the opportunity to protect his rights by all means provided by law.
The Constitutional Court recalled that this legal position has been repeatedly cited in its definitions and is consistent with the practice of the European Court of Human Rights.
“In the spirit of the legal positions of the Constitutional Court of the Russian Federation and the European Court of Human Rights, the disclosure of testimony given by a victim or witness who did not appear in court during the preliminary investigation is allowed only in exceptional cases provided for by law, if a proper assessment of the reliability of this testimony as evidence is ensured , and the accused had the opportunity to question the person testifying or challenge the reliability of his testimony at the pre-trial stage or in previous judicial stages of criminal proceedings. In this case, the prosecution is obliged to take exhaustive measures to ensure the participation in the court hearing of a witness or victim who did not appear,” the definition notes.
It is emphasized that Part 2.1 of Art. 281 of the Code of Criminal Procedure of the Russian Federation is subject to application in conjunction with other provisions of criminal procedure legislation that provide the accused in criminal proceedings with the right to defense and the right to a fair trial, and does not require additional specification of the list of means of challenging testimony. At the same time, the implementation by the party of defense of their rights regarding the refutation of testimony presupposes an active form of behavior. The inaction of the accused or his defense counsel regarding the exercise of these rights cannot be considered as a failure to provide him with the opportunity to challenge the relevant testimony.
The Constitutional Court of the Russian Federation also indicated that, according to the explanation in paragraph 4 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of November 29, 2016 No. 55 “On the Judicial Sentence,” the court does not have the right to announce without the consent of the parties the testimony of a witness who has not appeared, and also to refer to this evidence in the verdict if the defendant in the previous stages of the proceedings was not given the opportunity to challenge them in the ways provided for by law. Consequently, when assessing the evidence in a case, including the testimony of witnesses who failed to appear, the courts must take into account all the circumstances related to the reasons for their failure to appear, as well as the presence or absence of the defendant or his defense attorney’s opportunity to challenge this testimony in the manner prescribed by the criminal procedural law.
Thus, the Constitutional Court came to the conclusion that the contested norm of the Code of Criminal Procedure of the Russian Federation does not contain uncertainty and in itself cannot be regarded as violating the constitutional rights of the applicant in the aspect indicated by him. Verification of the legality and validity of its application in the applicant’s case does not fall within the competence of the Constitutional Court of the Russian Federation.
Managing Partner of the Law Firm "ZKS" Denis Saushkin noted that, despite the refusal to satisfy the complaint, in its decision the Constitutional Court of the Russian Federation indicated that the defense should exercise its rights to challenge such evidence at the pre-trial stage of proceedings, including at the familiarization stage with the materials of the criminal case.
However, according to Denis Saushkin, the point remains unclear how the defense should exercise its rights to challenge such evidence. “The suspect and the accused can familiarize themselves with the protocols of interrogations of witnesses and victims, as well as audio and video recordings with the participation of the latter, when fulfilling Art. 217 of the Code of Criminal Procedure of the Russian Federation, when the preliminary investigation is completed, and almost always the investigative body refuses to satisfy requests for additional investigative actions. Including the conduct of confrontations and additional interrogation of the accused with the presentation of audio and video recordings. In addition, the failure of a victim or witness to appear at a court hearing, including for the reasons specified in Art. 281 of the Code of Criminal Procedure of the Russian Federation becomes known only on the day of the court hearing, and it is impossible to predict,” the lawyer explained.
“Despite the fact that the Constitutional Court of the Russian Federation once again recalled the adversarial nature of the parties in criminal proceedings, that all doubts are interpreted in favor of the accused, and even that the suspect or accused, as well as his defense attorney, cannot be denied investigative actions at his request, in practice everything happens differently: the investigation makes it clear in every possible way that the Constitutional Court is not a decree for him,” the expert stated.
Lawyer of the law firm Bagryansky, Mikhailov and Ovchinnikov, Philip Bagryansky, expressed the opinion that the testimony of victims and witnesses who did not appear in court cannot be disclosed under any circumstances. The rules allowing such disclosure, according to the expert, are unconstitutional. “Failure to provide the accused with the opportunity to question a witness in court does not allow him to effectively carry out his defense. As long as interrogation in court is perceived as a formality – even in fact by the Constitutional Court – there is no need to talk about the existence of a fair trial in Russia,” says Philip Bagryansky.
Advisor to the FPA RF Evgeniy Rubinstein called the definition of the Constitutional Court of the Russian Federation significant and practice-oriented. According to him, since the introduction of Part 2.1 of Art. 281 in March 2016, the courts were “afraid” to apply this rule and give it at least some more or less conscious interpretation. “As a rule, the refutation of the thesis about the illegal disclosure of the testimony of a witness or victim in the conditions of not providing the defense with the opportunity to challenge them was reduced to asserting the opposite: “the defense was given the opportunity to challenge this testimony.” The judges did not bother themselves with arguments about when and in what procedure the defense tried to challenge this testimony,” the expert said.
Evgeniy Rubinstein drew attention to several important points set out in the definition. In particular, the Constitutional Court of the Russian Federation indicated: the announcement of the testimony of a witness or victim who did not appear is an exception to the general rule about the need to interrogate them in conditions of immediacy, orality and publicity.
He also called it important that the Court implemented the positions of the ECHR on the issue of fairness of the trial in the conditions of reading out the testimony of an absent witness or victim: “In this regard, lawyers have the opportunity to refer to the ruling of the Constitutional Court of the Russian Federation, and not to the positions of the ECHR, which are perceived ambiguously judges."
In addition, it is clarified that before considering whether the defense was given the opportunity to challenge the testimony of a witness or victim who failed to appear, the court must ascertain whether all possible and exhaustive measures were taken to bring the witness or victim to court. If it is recognized that such measures are not enough, then it is impossible to move on to the main issue. Therefore, the expert believes, the practice of determining the standards of appropriate actions by the prosecution to call and bring a witness or victim to court will now be formed.
