What is the penalty for giving knowingly false testimony in a criminal trial?
The crime of submitting false testimony is classified as socially dangerous, therefore it is important that the witness is sane and understands what misinforming the investigative bodies can lead to (Article 21 of the Criminal Code of the Russian Federation). If the witness has a mental health disorder, then partial criminal liability will be imposed; the judge will determine the punishment.
Not a single citizen of the Russian Federation will be punished for giving false testimony in court. But for knowingly false information, that is, with a warning, he will receive the following:
- A fine of up to 80 thousand rubles. If, during the investigation of a criminal case, he directed the authorities to the wrong place.
- Work as an employee of public organizations for 15-20 days. Then, when his false testimony led the case to a dead end or the wrong direction.
- Correctional labor for 2 years. This is punishable if you deceive the authorities with false information.
- Arrest for 3 months . When the person who testified has confirmed the information several times before the law.
- Imprisonment for up to 5 years. Then, when a witness unjustifiably accused a certain citizen of committing a serious or especially serious crime (307 of the Criminal Code of the Russian Federation).
A witness, specialist, translator, expert or victim may be confident in their testimony, but may not realize that it is false. In this case, there will be no criminal liability. Example: a witness identified the criminal by his clothing, but did not remember his face.
Anyone who admits the falsity of his testimony before a court verdict is also exempt from criminal liability.
Punishment for giving false testimony during a criminal investigation applies only to persons over 16 years of age (Part 1 of Article 20 of the Criminal Code of the Russian Federation). Their parents or guardians are responsible for the actions of young children under 16 years of age. They will also answer in court and testify for their children, or in the presence of them.
Arbitrage practice
False testimony can be directed not only at the defendant, but also at oneself - for example, in order not to testify against one’s friends. If the Constitution of the Russian Federation allows a witness not to testify against close relatives, then every citizen of the Russian Federation is obliged to tell all the known circumstances of the commission of a crime against his friend or good acquaintance.
Thus, the Zheleznodorozhny Court of Rostov-on-Don convicted a certain citizen A. for the fact that, being an eyewitness to the infliction of bodily harm on his acquaintances to the victim, he testified in court that he was not an eyewitness to the conflict and was at home at the time of the crime. The court found these statements to be false and citizen A. was sentenced to a fine of 4,000 rubles under Part 1 of Art. 307 of the Criminal Code of the Russian Federation, namely for perjury in a criminal trial.
Liability for knowingly false testimony in court in an administrative case
Responsibility for giving testimony invented by a witness in the event of an administrative offense occurs for persons over 16 years of age. According to the norms of the Code of Administrative Offenses of the Russian Federation, any citizen of the Russian Federation will be warned that he will be punished for submitting false information and committing a new administrative crime.
The violator of the law is expected to pay a fine of 1-1.5 thousand rubles (Article 17.9 of the Code of Administrative Offenses of the Russian Federation).
Of course, being held administratively liable does not cause serious legal problems in the future; pay the fine and the difficulties will end. However, do not forget that you will have to answer in court for possible misinformation of the investigative authorities. Practice shows that such cases are very common.
What is the penalty for giving false testimony in a civil court?
In accordance with Article 303 of the Criminal Code of the Russian Federation, any citizen over 16 years of age will be punished for knowingly false testimony. According to Part 1 of this article, if incorrect information was voiced by a participant in a civil case or his representative, he will face:
- A fine of 100-300 thousand rubles, or 2 years of income of the convicted person.
- Carrying out correctional work for 1-2 years.
- Arrest for 2-4 months.
In the event that a prosecutor, lawyer or investigator knows about deliberately false information and covers up the illegal actions of violators, they will:
- Sent to jail for up to 3 years (Part 2 of Article 303 of the Criminal Code of the Russian Federation). In addition, they may be restricted in their professional activities for up to 3 years.
- Serve a prison sentence for 3-7 years and be deprived of the right to engage in certain activities (Part 3 of Article 303 of the Criminal Code of the Russian Federation). This is when falsification of evidence has led to grave consequences or the commission of new grave or especially grave crimes.
Inclusion of written testimony of a witness in a criminal case
Recently, information was published on the AG website about a lawyer’s appeal to the FPA of the Russian Federation with the question of whether the protocol of a lawyer’s interview is relevant and admissible evidence in court. In his letter, the lawyer drew attention to the fact that in judicial practice there has been a contradictory approach to assessing the written explanations of a witness drawn up by the lawyer, and therefore, in his opinion, it is necessary to discuss this topic.
The question of the possibility of including at a court hearing the written testimony of a witness in a criminal case who refuses to appear in court also remains open.
In our opinion, the testimony of such a person can be drawn up in the form of an act of questioning by the defense attorney in accordance with paragraph 2 of Part 3 of Art. 86 Code of Criminal Procedure of the Russian Federation. It is advisable to request that such a document be included in the case materials along with a petition to involve the relevant person as a witness. If this is in the interests of the principal, it is possible, after the relevant person has received the status of a witness, to apply for the postponement of the court hearing or for the summons.
In the practice of considering criminal cases, there are situations when a lawyer representing one of the parties, already at the stage of the judicial investigation, becomes aware of persons who were not involved in the case as witnesses, but their testimony may be important for the correct consideration and resolution of the case. Under these circumstances, the lawyer has the right to file a petition to involve the named person in the case as a witness, which is subject to consideration by the court.
At the same time, cases may arise when a person who could give the necessary testimony refuses to appear at a court hearing for various reasons (for example, due to long periods of consideration of the case, concerns related to the identity of the accused, being on a business trip, etc.) . Practice shows that even if a request to involve the relevant person as a witness is granted, the court may not exercise its right to issue a ruling to summon or bring a witness (if he fails to appear without good reason) or to postpone the court hearing in accordance with Art. 272 of the Code of Criminal Procedure of the Russian Federation with reference to the principle of a reasonable period of criminal proceedings (Article 6.1 of the Code of Criminal Procedure of the Russian Federation). Article 281 of the Code of Criminal Procedure of the Russian Federation on the disclosure of witness testimony is also inapplicable in this case, since the witness has not yet given any testimony in the criminal case.
In judicial practice, there is a tendency to use interviews of persons who refuse to appear at a court hearing as witnesses, by a lawyer - a representative of one of the parties. This is done by analogy with the common law system, where the institution of affidavit is developed and actively used - written testimony made under oath to an authorized person, including lawyers, or the so-called “professional statement” - a term used in US law to denote a document prepared by an attorney and having the same legal force as an affidavit.
In particular, the English Criminal Procedure Rules (clause 16.4) contain provisions on the evidentiary value of a written witness statement in evidence, according to which the court has the right to accept a written statement of a witness about the circumstances known to him as appropriate evidence in a criminal case or call a witness for personal questioning at a court hearing.
Such a statement (also called an “affidavit”) has independent evidentiary value in the criminal procedural legislation of Canada (see, for example, Article 4.06 of the Rules of Criminal Procedure of the Supreme Court of Ontario)2.
It should be noted that the right to question persons with their consent is expressly provided only for defense attorneys in a criminal case (Clause 2, Part 3, Article 86 of the Code of Criminal Procedure of the Russian Federation), which raises the question of the admissibility of using the analogy of the law with the provision of such a right to representative lawyers other participants in criminal proceedings. From our point of view, such an analogy seems justified in light of the wording of Part 2 of Art. 86 of the Code of Criminal Procedure of the Russian Federation on the right of the victim, civil plaintiff, civil defendant and their representatives to collect and present written documents and objects for inclusion in a criminal case as evidence, as well as Explanation No. 1 of the Council of the Moscow Bar Association on issues of professional ethics of a lawyer3.
At the same time, any procedural action of a representative in a criminal (and other case) must meet the interests of the principal, namely the effective solution of emerging practical problems. Accordingly, the question arises about the real evidentiary value of the information obtained as a result of interviewing individuals by a lawyer, and, as a consequence, the advisability of using this mechanism.
The Federal Chamber of Lawyers in the Methodological Recommendations for the implementation of the rights of a lawyer provided for in paragraph 2 of Part 1 of Art. 53, part 3 art. 86 of the Code of Criminal Procedure of the Russian Federation and paragraph 3 of Art. 6 of the Federal Law “On Advocacy and the Bar in the Russian Federation” is based on the fundamental possibility of recognizing the act of a lawyer’s survey as independent evidence provided for in paragraph 6 of Part 2 of Art. 74 of the Code of Criminal Procedure of the Russian Federation and meeting the requirements of Art. 84 of the same Code.
According to the FPA of the Russian Federation, “the following data should be reflected in the act: information about the lawyer who conducted the survey, indicating the legal education, the bar association of the constituent entity of the Russian Federation in which this lawyer is listed, his number in the relevant register and the number of the warrant on the basis of which he carries out assignments in this case; last name, first name, patronymic, date and place of birth of the person being interviewed, his place of residence, place of work, position, home and work telephone numbers, information about documents proving his identity, relationship to the accused and the victim; mark indicating consent to the survey. The act of interrogation, it seems, must meet the requirements for the protocol of interrogation of a witness (Articles 189–191 of the Code of Criminal Procedure of the Russian Federation).”
At the same time, the protocol of interrogation of witnesses includes a note warning the person about criminal liability for giving knowingly false testimony, which raises the question of the legality of making such a note in the act of lawyer questioning and the evidentiary value of such an act in the absence of a mark.
According to the opinion of the Constitutional Court of the Russian Federation, expressed in the Determination of April 4, 2006 No. 100-O, putting such a mark to confirm that a person was warned by a lawyer about criminal liability, “would mean giving - contrary to the requirements of the Constitution of the Russian Federation and criminal procedure legislation – a procedural function unusual for it.”
Based on the results of studying judicial practice, we can conclude that the courts do not recognize such “acts” or “protocols” of surveys as independent evidence in the case
In particular, in the already mentioned ruling of the Constitutional Court of the Russian Federation, which addresses the issue of compliance with the Constitution of the Russian Federation, clause 2, part 3, art. 86 of the Code of Criminal Procedure of the Russian Federation, it is stated that the information obtained by the defense lawyer as a result of the interview can be considered as the basis for interrogating these persons as witnesses or for carrying out other investigative actions , since they must be verified and evaluated, like any other evidence, from the point of view of relevance, admissibility, reliability, and all the collected evidence in the aggregate – within the framework of sufficiency for resolving the criminal case.
A similar position was expressed by the Supreme Court of the Russian Federation in the cassation ruling of the Judicial Collegium for Criminal Cases dated August 10, 2006 in criminal case No. 39-006-9, during the consideration of which the question arose about the falsification by the defender of the interview protocols added to the case materials: “information received by a defense attorney as a result of an interview, can become evidence in a criminal case only when the person interviewed by the defense attorney confirms this information during an interrogation conducted in accordance with the requirements of the criminal procedural law by an interrogating officer, investigator, prosecutor or court. The survey protocol is only a form of recording the progress and results of the survey ”4.
The lower courts follow this position. Thus, the Appeal Ruling of the Amur Regional Court dated April 23, 2013 in case No. 22-623/13 contains the conclusion that this document can only be used as a basis for questioning relevant persons as witnesses or for carrying out other procedural actions in order to checks and assessments, since during such a survey the person is not warned of criminal liability in accordance with paragraph 2 of Part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation and provided for in Art. 51 of the Constitution of the Russian Federation the right not to testify against oneself and one’s close relatives is not explained to such a person5.
A more loyal position is expressed in the ruling of the St. Petersburg City Court dated July 2, 2013 No. 4489: “In accordance with Art. 86 part 3 clause 2 of the Code of Criminal Procedure of the Russian Federation, the defense attorney has the right to collect evidence by interviewing persons with their consent. However, the data obtained as a result of interviewing persons is subject, like all other evidence, in accordance with Art. 87 of the Code of Criminal Procedure of the Russian Federation is verified by comparing them with other evidence and in accordance with the requirements of Art. 88 of the Code of Criminal Procedure of the Russian Federation assessments from the point of view of relevance, admissibility and reliability.” However, in this case, the court found the survey act drawn up in violation of the requirements of Part 5 of Art. 164, 189 of the Code of Criminal Procedure of the Russian Federation, and also indicated that the person in question was previously questioned as a witness by the investigator and the court.
This conclusion corresponds to the previously expressed position of the Supreme Court of the Russian Federation regarding the admissibility of questioning a person who has already been questioned in a criminal case as a witness (Resolution of the Judicial Collegium for Criminal Cases of the Armed Forces of the Russian Federation on the resumption of proceedings in a criminal case due to new circumstances, dated January 20, 2010 No. 1PK10): “Within the meaning of Part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, the defense attorney has the right to collect evidence, including by interviewing persons with their consent who are not witnesses (victims) in the prescribed manner.” It should be noted that the Moscow Bar Association takes a similar position on the inadmissibility of conducting a lawyer's survey in parallel with the interrogation of a witness (Explanations (No. 1) of the Council of the Moscow Bar Association on issues of professional ethics of a lawyer).
Thus, despite the fact that the testimony of a person who knows the circumstances significant for the criminal case can be drawn up in the form of an act of questioning by a lawyer in accordance with paragraph 2 of Part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation, the court will most likely refuse to recognize such a document as independent evidence.
In this case, it is advisable to request that such a document be included in the case materials along with a petition to involve the person interviewed by the lawyer as a witness. If this is in the interests of the principal, after the interviewed person has received the status of a witness, it is possible to apply for a postponement of the court hearing or a summons.
1 29 Am Jur 2d Evidence.
2 Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7 (https://laws-lois.justice.gc.ca/eng/regulations/SI-2012-7/FullText.html).
3 Bulletin of the Moscow Bar Association. 2003. Issue No. 1. P. 30–31; 2004. Issue No. 11–12 (13–14). pp. 40–41; 2007. Issue No. 1(39). pp. 103–104. Collection of regulatory and information materials for 2002–2014: Special issue of the Bulletin of the Moscow Bar Association. – M., 2014. pp. 108–109.
4 See also the Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 4, 2008 in case No. 69-O08-4sp.
5 See also: Appeal ruling of the court of the Chukotka Autonomous District dated February 11, 2014 in case No. 22-4/14, No. 1-64/13; Information on the results of studying the practice of applying the norms of criminal procedure law governing the court's provision of the right to defend the accused (defendant) when considering criminal cases by the Nizhny Novgorod Regional Court at first instance for the period 2012 and 6 months of 2013 - “Bulletin of the Nizhny Novgorod Regional Court ", No. 11, November, 2013
