Article 307 of the Criminal Code of the Russian Federation with Commentary 2022: latest changes and amendments, judicial practice

ST 307 of the Criminal Code of the Russian Federation.

1. Knowingly false testimony of a witness, victim, or the conclusion or testimony of an expert, testimony of a specialist, as well as deliberately incorrect translation in court or during pre-trial proceedings -

shall be punishable by a fine in the amount of up to eighty thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a term of up to four hundred eighty hours, or by corrective labor for a term of up to two years, or by arrest for a term of up to three months.

2. The same acts, combined with accusing a person of committing a grave or especially grave crime, -

shall be punished by forced labor for a term of up to five years or imprisonment for the same term.

Note : A witness, victim, expert, specialist or translator are exempt from criminal liability if they voluntarily, during pre-trial proceedings or trial, before a court verdict or court decision, declared the falsity of their testimony, conclusion or knowingly incorrect translation.

Commentary to Art. 307 Criminal Code

1. The objective side is expressed in the form of actions to give deliberately false testimony, conclusion or incorrect translation. Deliberate falsity means that the relevant information is completely or partially untrue. False information is invented or distorted, true information relevant to the case is not reported (reporting fictitious facts, concealing essential details of the crime, etc.). These actions are carried out during the proceedings at the stage of pre-trial or judicial proceedings. Incorrect translation consists of deliberate distortion of the true content of the information being translated. These actions, combined with accusing a person of committing a grave or especially grave crime (Part 2), form a qualified crime.

2. The crime is recognized as completed from the moment of giving false testimony, the conclusion of an expert, specialist or incorrect translation.

3. Giving knowingly false testimony of a witness, explanations of a specialist, expert opinions or knowingly incorrect translation in proceedings on an administrative offense or in enforcement proceedings are qualified under Art. 17.9 Code of Administrative Offenses of the Russian Federation.

4. The subjective side is characterized by direct intent, implying the awareness that the testimony and conclusions are false, and the translation is incorrect.

5. Special subject: a person recognized as a witness, victim, expert, specialist or translator in the case. Similar actions of a civil plaintiff, a civil defendant, their representatives, a suspect, an accused, who, when questioned about the circumstances of the case, give false testimony, are not subject to qualification under this article.

6. The note provides a special basis for the release from criminal liability of persons who have committed this crime. This is possible if they voluntarily, during the inquiry, preliminary investigation or trial, before a court verdict or court decision is made, declare that their testimony, conclusion, or deliberately incorrect translation is false.

When can you not testify?

Article 51 of the Constitution of the Russian Federation tells us that any citizen can refuse to testify in court against himself and his immediate relatives. The closest ones in this case are:

Husband wife.
Father mother.
Children.
Adoptive parents/adoptees.
Brothers/Sisters.
Grandfather grandmother.
Grandchildren.

In any other situations, refusal is impossible and you will have to testify in any case. Otherwise, it will be regarded as a violation of the rights of other persons participating in the trial. In this case, on the basis of Article 306 of the Criminal Code of the Russian Federation, the court may impose punishment in relation to the injured person or witness in the form of:

Imposition of a fine of up to 40,000 rubles or deduction from wages within 3 months.
Mandatory work up to 360 hours.
Correctional labor for a year.
Arrest for up to 3 months.

Second commentary to Art. 307 of the Criminal Code of the Russian Federation

1. Testimony is considered false if it does not correspond to reality completely or in any part. They form part of the crime in question if they are given to an authorized person, in the manner prescribed by law and are properly procedurally formalized.

An expert's opinion is false if it contains a distortion of facts, an incorrect assessment, or conclusions that are not based on the materials of the case.

Incorrect translation is a distortion of the meaning of oral speech translated from one language into another (testimony of a witness, victim, accused, questions from a judge, etc.) or documents.

2. The moment of completion of a crime in criminal proceedings depends on the stage of the process and the act committed. At the stage of preliminary investigation, false testimony of a witness, victim or specialist forms a completed crime from the moment the interrogation protocol is signed; false conclusion - from the moment it is presented by the expert to the investigative or inquiry authorities; false translation of an interrogation - from the moment the protocol or document is signed - from the moment its translation is presented by the translator to the investigative and inquiry authorities. At the trial stage, the crime is over when the witness, victim or specialist has finished giving evidence, the expert has stated the contents of the conclusion, and the translator has translated the testimony or document.

3. The subjective side is characterized by direct intent.

4. The subject of the crime is a special one: a witness, victim, expert, specialist, translator who has reached the age of 16 years.

A witness, victim, expert, specialist and translator are exempt from criminal liability if they voluntarily, during an inquiry, preliminary investigation or trial, before a verdict or court decision is made, declare the falsity of their testimony, conclusion or knowingly incorrect translation.

5. Knowingly false testimony, expert opinion or incorrect translation, connected with an accusation of committing a grave or especially grave crime, are covered by Part 2 of Art. 307 of the Criminal Code.

How to prove a lie in court?

Anyone can encounter false testimony. And if in one case the witness may not know that his testimony is false and in no way can help the interests of the investigation, then situations of collusion with one party or another can be assessed in a completely different way. In the first case, everything is solved in a trivially simple manner, the person confesses and that’s it. In the second case, you have to prove the fact of lies and pull out the truth in all possible ways.

We will look at the most effective ones, which can often be found when considering real court cases:

Attracting witnesses with counterarguments. When there is a deliberately lying witness in the room, then the opposing side can quite obviously present several people (not liars, of course) refuting his version. A simple example can be given here. Let’s say the court is considering the theft of personal belongings from an apartment. One witness claims that he saw the accused during the specified period of time, passing by him at the entrance. These words can be refuted by another witness, who at that time was washing the floors on the stairs and did not see anyone.
Requirements for conducting a lie detector examination. This practice is often common in the West. We use it only in cases where there is no visible evidence. Not widespread does not mean that it is useless, therefore this method can be used in everyday life.

Example
When can it be used? Let’s say the basis for considering the case was a family conflict. The husband claims that he did not beat his wife, but was in a bar with friends. His friend confirms everything, but the doctors shrug their shoulders and only talk about bodily injuries, the neighbors are also silent. In this case, you can call a witness to conduct a polygraph examination and clarify all the circumstances. During the investigation, you can find out what he did all day and, based on the data obtained, try to prove his lie.

Problems from practice

Problems with qualifications arise in relation to witnesses who deliberately testify against themselves or innocent third parties in order to exonerate the accused from liability. If such perjury cannot be exposed and proven, the offender may unreasonably be given a less severe punishment.

Note!

When witness testimony forms the basis of an accusation against an innocent person, there must be evidence of intent and absence of misconception regarding the information reported. Otherwise, it is impossible to hold him accountable.

Types of offenses and liability for them

Offenses related to reporting false information to law enforcement agencies can be divided into two groups:

false reports of offenses intentionally sent to law enforcement agencies by telephone, through a written application or in electronic form, through the department’s website;
false testimony presented to the court and law enforcement agencies in the framework of civil, criminal or administrative proceedings or legal proceedings by persons having procedural status.

Note!

Depending on the type of proceedings in which such false information is reported, as well as the circumstances of the situation, the offender faces administrative or criminal liability.

False incident reporting

An appeal sent to the department should be considered a false report of an event. Its purpose is to involve law enforcement or other authorities in an incident that actually does not occur.

Note!

The key feature of this offense is the deliberate falsity of the message. The applicant initially knew that there was no incident. In this case, the severity of the classification of this offense will depend on the severity of the consequences of the report and the nature of the incident about which the report was received.

Onset of administrative liability

Administrative punishment under Art. 19.13 of the Code of Administrative Offences, persons who knowingly made a false call to intelligence officers: the police, the Ministry of Emergency Situations, and doctors are prosecuted. A threat is created to the normal functioning of public services. Their performance of official duties is hampered by the actions of violators.

Note!

Violators will be released from punishment if it is proven that the false call occurred due to the person’s honest misconception about the fact of the incident and its incorrect assessment.

If the violator is found guilty, he faces an administrative fine in the amount of 1-1.5 thousand rubles.

Onset of criminal liability

If the applicant reports the commission of a crime, the event of which is obviously absent and he knows about it, he commits a knowingly false denunciation, which constitutes a crime under Art. 306 of the Criminal Code.

Depending on the actions of the applicant, the severity of his guilt will be determined. In general cases, reporting a crime without its occurrence threatens the complainant:

a fine of 120 thousand rubles;
compulsory or corrective labor for a period of 480 hours or 2 years, respectively;
forced labor for up to 2 years;
arrest for up to six months;
actual prison term is up to 2 years.

If the message is accompanied by an indication of the deliberately false identity of the offender, who as a result will be charged with a serious or especially serious criminal offense, the applicant is threatened with:

fine 100-300 thousand rubles;
forced labor up to 36 months;
actual prison term is up to 3 years.

If the applicant deliberately reports a false crime event, artificially creating an evidence base for the accusation, his actions are qualified under Part 3 of Art. 306 of the Criminal Code, which threatens him:

forced labor for up to 5 years;
a real prison term of 6 years.

A false report of a terrorist attack was highlighted in a separate section. The perpetrators are prosecuted under Art. 207 of the Criminal Code, which carries a maximum penalty of 10 years in prison.

Expert of the ANO "Tomsk Center of Expertise" Smirnova S.V.

Improving the mechanism for bringing forensic experts to criminal liability, provided for in Article 307 of the Criminal Code of the Russian Federation

When performing a forensic examination, the expert is always warned about criminal liability for giving a knowingly false conclusion under Article 307 of the Criminal Code of the Russian Federation, about which he gives a corresponding signature.

The share of those convicted under Article 307 of the Criminal Code of the Russian Federation relative to other crimes against justice has been steadily decreasing from 20% in 2011 [1] to 6% in 2016 [2]. As an analysis of the state of crime among forensic experts shows, prosecutions under Article 307 of the Criminal Code of the Russian Federation are sporadic. It is very difficult to prove the elements of this crime, especially its subjective side. In addition, the current version of Article 307 of the Criminal Code of the Russian Federation, in particular the Note to it on the release of an expert from criminal liability in the event of his voluntary admission of a false conclusion, negatively affects the legal consciousness of the expert and creates an attitude towards easy avoidance of responsibility for his unlawful acts.

The objective side of the crime provided for in Article 307 of the Criminal Code of the Russian Federation is to give a knowingly false conclusion or testimony of an expert, as well as knowingly false testimony of a specialist.

The deliberate falsity of the expert’s conclusion was quite fully characterized by Belkin R.S., who pointed out that it “can be expressed in deliberate ignorance or silence in the study of essential facts and features of the objects of examination, in a distorted description of these facts and features, a deliberately incorrect assessment of them or deliberately incorrect actions and operations for their research, deliberately incorrect choice of expert methodology or its application” [3, p. 322].

Part 1 of Article 307 of the Criminal Code of the Russian Federation in the current version is formulated as follows: “Knowingly false ... or the conclusion or testimony of an expert, the testimony of a specialist, as well as deliberately incorrect translation in court or during a preliminary investigation - are punishable ....” A literal interpretation of this provision allows us to assert that an expert bears criminal liability for knowingly making a false conclusion or testimony during an examination at the stage of preliminary investigation, as well as in court. In this case, the activity of a forensic expert in conducting forensic examinations within the framework of judicial proceedings, but not in the court itself, falls outside the scope of legal regulation. According to the provisions of the current procedural codes, a forensic examination is carried out in a court session or outside the session, if this is necessary due to the nature of the research, or if it is impossible or difficult to deliver materials or documents for research at the session. Almost all types of forensic examinations in civil, administrative, and arbitration proceedings are carried out outside the court, outside the court hearing. Law enforcement currently allows for a broad interpretation of the provisions of Part 1 of Article 307 of the Criminal Code of the Russian Federation and extends them to the conduct of an examination not only in a court hearing, but also outside it. A broad interpretation of a criminal norm violates the constitutional and internationally recognized provision that a broad interpretation should be applied to rights and freedoms, but is unacceptable when interpreting legal prohibitions. Also, with this formulation, the criminal liability of an expert for giving a knowingly false conclusion when conducting examinations within the framework of the Tax Code of the Russian Federation, the Labor Code of the Customs Union, and the Fundamentals of Legislation on Notaries is excluded. When conducting an examination in cases of administrative offenses in accordance with the norms of the Code of Administrative Offenses of the Russian Federation, the expert is liable for giving a knowingly false conclusion in accordance with Article 17.9 of the Code of Administrative Offenses of the Russian Federation. It seems that the public danger of preparing and issuing a knowingly false conclusion by an expert is great, including in cases of administrative offenses; accordingly, such an act should fall under the provisions of the Criminal Code of the Russian Federation.

Also, at present, there are no rules establishing the responsibility of an expert when conducting an examination in the field of procurement of goods, works, services to meet state and municipal needs (Article 41 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods , works, services to meet state and municipal needs"). Currently, public discussions have been completed on two bills providing for amendments to the Code of Administrative Offenses of the Russian Federation and the Criminal Code of the Russian Federation in terms of establishing, respectively, administrative and criminal liability of experts for giving knowingly false conclusions carried out during examinations in the field of procurement of goods, works, services for the provision of government and municipal needs. There is a need to establish only criminal liability for knowingly false conclusions prepared in this area.

Also, the current legislation does not provide for the responsibility of an expert when conducting examinations in cases of violation of antimonopoly legislation considered by the antimonopoly service in the manner established by Federal Law No. 135-FZ of July 26, 2006 “On the Protection of Competition.”

Several proposals have been made in the literature to improve Article 307 of the Criminal Code of the Russian Federation. For example, Budaeva E.V. [4] proposes to exclude a knowingly false expert’s opinion from the objective side of Article 307 of the Criminal Code of the Russian Federation, since the expert’s conclusion is evidence fixed on a tangible medium and, accordingly, should be qualified under Article 303 of the Criminal Code of the Russian Federation. It is very difficult to agree with this proposal, since the expert’s conclusion is not always fixed on a tangible medium. Thus, Article 82 of the CAS of the Russian Federation allows for the possibility of an expert giving an opinion orally. In addition, judicial practice in other types of legal proceedings indicates the possibility of an expert giving an opinion orally with the conclusions reflected in the minutes of the court session. Quite often, this situation arises when, during the interrogation of an expert based on the results of the primary examination, the need arises to conduct an additional examination, and there is an objective possibility of carrying it out directly at the court hearing. Thus, the exclusion from the objective side of Article 307 of the Criminal Code of the Russian Federation of mention of the deliberate falsity of an expert’s opinion will lead to the fact that false expert opinions given orally will fall out of the scope of criminal liability.

Another proposal to improve Article 307 of the Criminal Code of the Russian Federation was made by N.S. Kosyakova. [5, pp. 66-74], who believes that it is impossible to equate responsibility for giving a knowingly false expert opinion in criminal proceedings and civil proceedings: the consequences of a false conclusion in criminal proceedings, in her opinion, are much more serious (deprivation of a person’s freedom). In this connection, it proposes to establish administrative liability for giving a false opinion by an expert in civil proceedings. It is not possible to agree with this author’s proposal, since civil and arbitration proceedings are especially important in a market economy, the subject of disputes is sometimes multi-billion dollar amounts, and the fate of organizations and individuals largely depends on the justice of the court. Or, for example, how one can downplay the consequences of a false opinion from a psychological expert in cases involving disputes about children.

Authors Gorelik A.S., Lobanova L.V. [6, p. 303] see a significant flaw in the wording of the note to Article 307 of the Criminal Code of the Russian Federation: based on the literal meaning inherent in the note, in order for an expert to be exempt from criminal liability, it is enough to declare the falsity of this conclusion, which is significant, but, according to in their opinion, insufficient to provide real assistance to the court. The authors propose to add a note to this article indicating that in order to be exempt from criminal liability, in addition to admitting the falsity of this conclusion, it is necessary to give a truthful expert opinion. The position of the authors is quite logical and justified. But, given the degree of public danger of these acts, it seems that, in the case of forensic experts, the possibility of releasing them from criminal liability in connection with voluntary confession of a crime should be excluded from the note to Article 307 of the Criminal Code of the Russian Federation, and the fact of recognition itself must be considered only as a circumstance mitigating punishment.

Part 2 of Article 307 of the Criminal Code of the Russian Federation contains one qualifying feature: “acts associated with accusing a person of committing a grave or especially grave crime.” A number of authors reasonably make proposals to expand the qualifying features of this crime. For example, Dvoryanskov I.V. [7] proposes to consider as qualifying: the infliction of grave consequences (prolonged detention of an innocent person in custody, conviction to a long term of imprisonment, etc.) and the commission of a crime by a group of persons by prior conspiracy. Gorelik A.S., Lobanova L.V. [6, p. 303] propose to “return” to Article 307 of the Criminal Code of the Russian Federation the creation of artificial evidence of the accusation, which was in a similar composition of Article 182 of the Criminal Code of the RSFSR of 1960. It is also necessary to consider the commission of a crime for mercenary reasons as a qualifying feature.

In the literature, with references to foreign experience, proposals are voiced to strengthen the sanctions of Article 307 of the Criminal Code of the Russian Federation [8, pp. 284-287]. This proposal is quite reasonable, since the size of the sanction is currently not proportional to the degree of public danger of the crime.

Thus, there is a need to amend Article 307 of the Criminal Code of the Russian Federation.

List of used literature:

1. Official statistics of the Judicial Department at the Supreme Court of the Russian Federation for 2011 from form No. 10-a “Report on the number of convicts for all crimes of the Criminal Code of the Russian Federation” [Electronic resource] // Judicial Department at the Supreme Court of the Russian Federation. Electron. Dan. [B. m.], 2009-2017. URL: https://www.cdep.ru/index.php?id=79 (access date: 04/28/2017).

2. Official statistics of the Judicial Department at the Supreme Court of the Russian Federation for 2016 from form No. 10-a “Report on the number of persons convicted of all crimes of the Criminal Code of the Russian Federation and other persons against whom judicial acts were issued in criminal cases” [Electronic resource] / / Judicial Department under the Supreme Court of the Russian Federation. Electron. Dan. [B. m.], 2009-2017. URL: https://www.cdep.ru/index.php?id=79 (access date: 04/28/2017).

3. Belkin R. S. Course in criminology: Particular forensic theories. In 3 volumes. T. 2. M., 1997.

4. Budaeva Yu. V. Criminal legal problems of combating falsification of evidence [Electronic resource]: abstract. dis. ...cand. legal Sci. M., 2004 // Electronic library of dissertations. Electron. Dan. [B. m.], 2007-2016. URL: https://www.dissercat.com/content/ugolovno-pravovye-problemy-borby-s-falsifikatsiei-dokazatelstv (date of access: 11/11/2016).

5. Kosyakova N. S. False testimony // State and law. 2001. No. 4. P. 66-74.

6. Gorelik A. S., Lobanova L. V. Crimes against justice. St. Petersburg, 2005.

7. Dvoryanskov I.V. Crimes that violate procedural conditions for obtaining evidence [Electronic resource] // K-Press LLC. Electron. Dan. [B. m.], 1994-2016. URL: https://www.k-press.ru/bh/2003/2/dvoryanskov/dvoryanskov.asp (access date: 01/06/2017).

8. Bykanov M. Perjury is the enemy of justice // Legality. 2006. No. 5. P. 26-27; Spektor L.A. Deliberately false testimony, expert or specialist opinion, or incorrect translation as an obstacle to the administration of justice // Gaps in Russian legislation. 2009. No. 4. P. 284-287.