When summoned to a judicial authority, a person is obliged to appear or declare valid reasons for absence. The presence of all participants in the process is necessary for the procedure to proceed correctly. Liability is provided for the failure of a witness to appear in court in a criminal case. It is worth knowing what consequences will follow if you are absent from a court hearing.
What is the danger of a witness failing to appear in court in a criminal case?
Most people understand that victims, defendants, and witnesses must be present at trial.
None of them has the right not to appear at the meeting, the time of which is set in advance. The witness should also be in the courtroom, because he plays an important role in the case and can even direct the investigation in a different direction. Let's consider what can happen if a person does not appear at the trial. When a person's testimony is significant, the case may be postponed to another date. In other cases, they have the right to continue the trial even if the summoned witness is absent. As a rule, testimony is not made public in his absence. But if the citizen has failed to appear many times, the prosecutor will have the opportunity to ask for previous evidence to be read out. In this case, there will be a reference to extraordinary circumstances. However, the final decision on this point is made by the judge.
Important! The defense may object and disagree with the prosecutor's opinion. Because disclosing testimony without the person himself is a gross violation.
Law enforcement agencies may believe that the failure to appear occurred because the person has something to hide. This means that representatives of the law will be more interested in the citizen. That is why it is better not to hide from court proceedings and remember the duties and rights of a witness. Then the participant in the case will not have any problems, and he will only be required to give testimony.
Compensation for the performance of state or public duties
According to the general rule provided for in Part 2 of Art. 170 of the Labor Code of the Russian Federation , a state body or public association that has engaged an employee to perform state or public duties, pays him compensation during the performance of these duties in the amount determined by the Labor Code, other federal laws and other regulatory legal acts or by a decision of the relevant public association.
At the same time, the Labor Code for the performance of certain duties does not establish the payment of compensation, but the retention of average earnings for the employee, in particular, for persons participating in collective bargaining (Article 39 ), members of labor dispute commissions ( Article 171 ), donors ( Article 186 ), members of conciliation commissions and labor arbitrators ( Article 405 ).
But the procedure for paying for the participation in the work of trade unions of members of their elected collegial bodies who are not exempt from their main work is determined by a collective agreement or agreement ( Article 374 of the Labor Code of the Russian Federation ).
For your information
The average earnings of trade union members released from their main jobs are maintained by the all-Russian (interregional) trade union. It is retained for the period of employment (no more than six months) of the trade union worker, if at the end of his term of office the employer was unable to provide him with his previous place of work ( Article 375 of the Labor Code of the Russian Federation ).
The employer must also retain the average earnings for employees undergoing military training ( Article 6 of the Federal Law of March 28, 1998 No. 53-FZ “On Military Duty and Military Service” ). In addition, they are compensated for other expenses, for example, those associated with renting housing, travel expenses, and business trips.
However, subsequently all these expenses are reimbursed to the employer by the Ministry of Defense[1].
In other cases of performance of state and public duties, the employee receives compensation from government bodies or public associations that involved him in the performance of such duties.
Good reasons
In some cases, the witness does not want to hide from the court, but actually cannot come to the hearing. Therefore, you should know the good reasons that justify a person in such a situation.
Causes:
- Illness of the summoned citizen or his loved one, which makes it impossible to appear in court.
- Lack of transport links, accident.
- Various man-made disasters.
- No subpoena.
- Receive a summons on the court date or later.
- The need to leave for work or serious personal reasons.
Please note that the reasons described above will need to be confirmed with documents. If a person simply forgot about the meeting or did not want to participate in it, then he will have to bear responsibility for his action. Also, a citizen has the right to be required to appear in court, and for this they can even turn to law enforcement officers.
Consequences of the victim’s failure to appear when called
Lawyer Antonov A.P.
Part 6 art. 42 of the Code of Criminal Procedure of the Russian Federation, duplicates that provided for in paragraph 2 of Part 2 of Art. 111 and art. 113 of the Code of Criminal Procedure of the Russian Federation, the possibility of applying coercive measures in the form of a summons to a victim who evades appearing before an investigator (inquirer, etc.), in court (to a judge). In particular, it says: “If the victim fails to appear when summoned without good reason, he may be brought in.”
We explained the concept of “challenge” in relation to the characteristics of clause 1, part 5, art. 42 of the Code of Criminal Procedure of the Russian Federation.
The term “failure to appear,” which the legislator used here, should be interpreted as the absence of the victim at the place appointed by the investigator (investigator, etc.), court (judge) on the established date and time. The victim can come at another time (day) or meet with the investigator (inquiry officer, etc.), judge in another place. In this case, no-show will still occur. Another thing is that if the investigator (inquirer, etc.), when meeting at another time or in another place, considers it possible to carry out a procedural action with the participation of the victim and is able to solve the problems facing him through the required action, he has the right not to apply a measure of procedural coercion to the victim, which is sanction for failure to appear.
When the investigator (inquirer, etc.) does not consider it necessary to conduct a procedural action on that day and time, as well as in the place where and when the victim who did not appear earlier met him, the victim can be brought to the place of preliminary investigation at a convenient place for the investigator (investigator, etc.) time and, accordingly, day. The court (judge) has the right to do the same.
From the text of Part 6 of Art. 42, as well as part 1 of Art. 188 of the Code of Criminal Procedure of the Russian Federation it follows that the failure of the victim to appear is possible only for good reasons. “Respectful” means “sufficient to justify something,” “reasonable.” A reason is a circumstance that causes, explains someone’s actions, actions, a basis, a pretext for some action, in our case for inaction.
The victim is prohibited from not appearing before the investigator (interrogating officer, etc.) or the court (judge) at the appointed time (at the indicated place) without sufficient explanation. The following are recognized as valid reasons for the failure of a victim to appear when called by an investigator (inquirer, etc.) to court (to a judge):
1) natural disasters, catastrophes;
2) an illness that actually deprives the victim of the opportunity to appear;
3) death of close relatives of the summoned victim;
4) illness of a family member or the presence of young children when it is impossible to entrust someone with caring for them;
5) late receipt or failure to receive a summons;
6) long unforeseen interruption in traffic;
7) other significant circumstances depriving the victim of the opportunity to appear at the appointed time.
A victim who fails to appear (usually fails to appear twice) when called without good reason may be subject to arrest. In other words, applying a summons to a victim who fails to appear when summoned is not an obligation, but the right of the investigator (inquiry officer, etc.), the court (judge).
Otherwise, the drive referred to in Part 6 of Art. 42 of the Code of Criminal Procedure of the Russian Federation is a coercive measure applied in accordance with the requirements of Art. 113 of the Code of Criminal Procedure of the Russian Federation to victims in the event of their failure to appear (usually twice) without good reason when called by an investigator (inquiry officer, etc.), court (judge).
The investigator (inquiry officer, etc.), as a rule, entrusts the execution of the investigation to the internal affairs body. The procedure for implementing the considered measure of procedural coercion by internal affairs bodies is as follows.
The received decision to bring the victim is considered by the head of the internal affairs body or the person performing his duties.
In this regard, he organizes a check of the information specified in the resolution about the victim to be brought in, and also takes measures to establish his actual location.
Then an employee or group (squad) of police officers is allocated, taking into account the investigative jurisdiction of the criminal case in which a decision has been made to bring the victim. The latter are obliged to reliably establish the identity of the victim being brought in based on the information available in the decision to bring him in (last name, first name, patronymic, year of birth and location).
Upon identification of the person to be brought in, a police officer or a senior group (squad) of police officers announces to him, against his signature, a decision to bring him in. If the victim refuses to sign by a police officer or the senior group (squad) of police officers executing the arrest, a corresponding entry is made in the arrest order.
The victim subject to bringing is also explained his right to legal assistance, the right to the services of an interpreter, the right to notify close relatives or close persons about the fact of his bringing, the right to refuse to give an explanation.
Police officers carrying out the arrest do not have the right to allow actions that humiliate the honor and dignity of the victim. At the same time, they are obliged to be vigilant in order to exclude cases of the victim evading appearance at the place of call or causing any harm to himself or others.
Upon execution of the arrest order, the police officer who carried it out receives a receipt from the investigator indicating the time of execution.
In accordance with the law, the victim cannot be brought in at night (from 22:00 to 6:00 local time), except in urgent cases.
It is recommended to consider the following situations as urgent cases:
1) factual grounds for using the drive suddenly appeared;
2) there are circumstances that allow us to believe that refusal to immediately carry out a summons may lead to the loss of information relevant to the criminal case.
If the effectiveness of the drive does not change when it is carried out in the morning of the next day, then this procedural action cannot be considered urgent. It is prohibited to carry out such a drive of the victim at night.
The bringing of the victim, as determined by the court, as a general rule, is carried out by bailiffs to ensure the established procedure for the activities of the courts. However, the law does not prohibit bailiffs from contacting the internal affairs body for assistance in bringing the victim.
In Part 6 of Art. 42 of the Code of Criminal Procedure of the Russian Federation mentions one of the measures of criminal procedural liability, which may follow the failure of the victim to appear when called without good reason. We are talking here only about the drive. Meanwhile, the law provides for two more similar measures: an obligation to appear (Article 112 of the Code of Criminal Procedure of the Russian Federation) and a monetary penalty (Articles 117 and 118 of the Code of Criminal Procedure of the Russian Federation). Any (and in some cases several) of the above-mentioned measures of procedural coercion may be applied to a victim who fails to appear in court when summoned by an investigator (inquiry officer, etc.) without good reason.
Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.
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Liability provided
Considering the fact that the absence of a witness affects the quality of the meeting, they have the right to hold him accountable. Therefore, if a citizen does not appear for the case, then he will face consequences.
What could be:
- They will be forcibly brought to a court hearing.
- A fine will be imposed for absence from the courtroom. If a civil case is being resolved, then you will have to pay 1,000 rubles. Witnesses in criminal proceedings will pay 2,500 rubles.
At the moment, there is no criminal liability for the fact that a person does not appear at the meeting. But a person must still appear in court if there are no reasons for absence. Some citizens are looking for ways to avoid punishment for failure to appear. It can be said unequivocally that liability will not arise only if there are legislative grounds for canceling the fine. Therefore, now we will consider in what situations a person will not have to answer to the law.
The employee received a summons
First, let's figure out what cases and where an employee can be summoned. These can be civil, administrative and criminal cases. All of them are considered by courts of general jurisdiction. Arbitration courts hear disputes in the field of business and other economic activities.
There are also tax offenses that are considered by tax inspectorates. Accordingly, the employee may be summoned to a court of general jurisdiction or an arbitration court, or the tax office.
In addition, he can be called by the bodies of inquiry, investigative bodies and the prosecutor's office. It should be noted here: in order to qualify such calls as the performance of public duties, the employee must have a certain status. Thus, guided by the norms of the Civil Procedure Code, when considering civil cases, an employee can act as:
– parties (plaintiff or defendant);
– witness;
– juror;
– specialist, expert, translator.
In accordance with the Code of Administrative Procedure, when considering administrative cases, an employee may be:
– a party (administrative plaintiff or administrative defendant);
– witness;
– specialist, expert, translator.
Finally, when considering criminal cases, by virtue of the provisions of the Code of Criminal Procedure, an employee may be:
– the victim (his legal representative);
– the accused;
– a civil plaintiff;
– witness;
- attesting witness;
– specialist, expert, translator.
An employee can be summoned to an arbitration court as a witness, specialist, expert, translator, as well as an arbitration assessor.
However, not all of these statuses give the employee the right to receive guarantees in accordance with Art. 170 Labor Code of the Russian Federation . In particular, participation in legal proceedings as a plaintiff or defendant and, of course, as an accused is not considered to be the performance of public duties by an employee. For everyone else, such an obligation is established regardless of what process (civil, administrative or criminal) the proceedings take place.
Guided by the provisions of the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Tax Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and other federal laws and regulations, the employee performs state duties if he is summoned to court, the tax inspectorate, inquiry bodies, investigative bodies and the prosecutor's office as a witness or specialist , expert, translator, victim (his legal representative), attesting witness, and also if he serves as a juror or arbitrator.
For your information
The bodies of inquiry include internal affairs bodies, police departments (divisions, divisions, points), FSSP bodies, fire inspection bodies ( Article 40 of the Code of Criminal Procedure of the Russian Federation ).
Is it possible to avoid punishment
By law, all participants in the case, including witnesses, must appear in court.
The agenda is sent in advance, so the person will have the opportunity to prepare for the meeting and free up time for it. If for some reason a citizen cannot be present at the case, then he must inform the court about this. You can submit a petition to change the dates or time of the meeting. The court often accommodates people halfway in such requests. As a rule, it is possible to postpone the case for a month, so it will not be possible to delay the process for a long time. Therefore, if a person does not want to appear due to fear, laziness or other disrespectful reasons, then it would be unreasonable to change the deadline.
There will be no punishment in the case where a citizen was unable to come for a serious reason. If he can confirm this fact with official papers, then he will not be held accountable. Please note that there is no specific list of reasons. However, it is important that the reason for the absence clearly indicates the impossibility of appearing in court.
How is a subpoena to call a witness served?
A summons for interrogation is served in person against a signature or by mail and means of communication. “Media of communication” is a fairly general concept and includes mail, telegram call, telephone message, fax, electronic means of communication, etc. The call must be recorded in the file.
For example: if an investigator transmits a call by telephone, he must compile a telephone message. In the telephone message, indicate to whom and when the telephone message was transmitted, the telephone number on which the information was transmitted, the required amount of data in accordance with the law and attach it to the case materials. In practice, they still try to notify in writing, against signature, since it is difficult to identify a person over the phone.
“Without any procedural formalization, a telephone message cannot be a substitute for the delivery of a subpoena and be considered as a proper summons to court or to an investigative agency for questioning.” Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 23, 2008 N 81-O08-85.
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