Article 51 of the Constitution of the Russian Federation reads as follows:
1. No one (implies any natural person, without reference to the status of a citizen) is not obliged to testify against himself personally, his spouse and close relatives.
2. Federal law may establish other cases of exemption from the obligation to testify.
The content of the so-called witness immunity includes the right not to stipulate oneself, one's close relatives and spouses, to remain silent, not to assist the investigation (within certain limits). In one form or another, the privilege against self-denunciation is provided for in the laws of almost all countries and in international law (European Convention for the Protection of Human Rights and Fundamental Freedoms).
Of great importance is 51 article of the Constitution of the Russian Federation in criminal proceedings. In the process of investigation and trial, testimony often determines the fate of a particular person.
The right to silence in the law of the Russian Federation
Most people, having legal knowledge at the household level, represent the meaning of Art. 51 of the Constitution of the Russian Federation for films produced in the USA. The phrase "you can remain silent; everything that you say can be used ..." is familiar to many. In foreign law, this provision is called the “Miranda rule” and implies that any information received from detainees to the clarification of their (verbal) procedural rights cannot be used in court as evidence. Therefore, they try to clarify immediately.
But in Russia the “Miranda rule” does not apply, and people who do not answer any questions from law enforcement officials often act to their own detriment. They have the right not to provide information that would harm them personally or their loved ones, but they cannot be silent at all.
Prohibition of self-talk
The privilege against self-incrimination is an important component of Art. 51 of the Constitution of the Russian Federation. It is separately spelled out in the main codes - the Code of Criminal Procedure, the agro-industrial complex, the Code of Administrative Offenses and the Code of Civil Procedure of the Russian Federation.
It is worth noting that the prerequisites for witness immunity appeared in England in the 12th century, when suspects of heresy were forced to give vows ex officio. In the modern world, this rule is the most important of the principles of justice. He is given special attention in the USA, Australia, Germany, Canada and the EU countries. But the procedural implementation of privileges against self-incrimination varies depending on the system adopted in the state.
1. In countries of common law (case law), if the suspect agrees to testify, then he is questioned as a witness. Accordingly, he can be held liable for the subsequent refusal of testimony or the reporting of knowingly false information.
2. In the states of the continental system (including the Russian Federation), a suspect or accused who has refused testimony or provided false information is not held accountable. It is believed that he acts in the framework of protection against self-denunciation.
The right to refuse testimony is associated not only with the story of a specific misconduct. A person may not provide any information about himself, which subsequently can be used in the criminal process as evidence.
Testimony against spouses and relatives
The list of persons against whom you can refuse to testify is given in paragraph 4 of Art. 5 Code of Criminal Procedure. It includes:
- Spouses - persons with whom marriage is registered with the registry office.
- Parents or adoptive parents.
- Children, including adopted.
- Relatives, including half-mothers and single-mothers, brothers and sisters.
- Grandchildren.
- Grandparents.
The list is closed and applies to all types of industries - a similar list is given in other codes of the Russian Federation. The big omission is that it does not include stepfathers, stepmothers, cohabitants (common-law spouses). In the framework of criminal proceedings, witnesses are entitled to use paragraph 3 of Article 5 of the Code of Criminal Procedure of the Russian Federation on the concept of “close people” (persons who are related or people whose well-being is dear to a witness because of personal affection). Formally, the law referred to in the Constitution of the Russian Federation, article 51, can also be applied to them.
Coercion guarantees
The use of actions (threats, blackmail) to coerce to testify is a criminal offense under Art. 302 of the Criminal Code. It is assumed that any information about the circumstances of the dispute or crime should be given voluntarily, with full understanding of the consequences of what was said. Formally, this principle is not indicated anywhere, but the European Convention implies it at the heart of the very concept of fair justice.
In Russia, it is with guarantees against coercion that the practice of clarifying Art. 51 of the Constitution of the Russian Federation before drafting all procedural documents in the framework of criminal proceedings and trials.
The Constitution of the Russian Federation (Article 51, the interpretation of which provides for the right to absolute protection against self-incrimination) formally makes confession impossible. Indeed, in essence it is a violation of witness immunity.
For such cases, the Supreme Court of the Russian Federation indicated that pleading guilty to the accused or suspect is not evidence and does not require the participation of a lawyer. In practice, the investigating authorities before drafting the relevant protocol on recognition as a person explain (under signature) the provisions of Art. 51 of the Constitution of the Russian Federation.
Limitations of witness immunity
It is very important to understand the possible application for this norm. Article 51 of the Constitution of the Russian Federation is limited by several prohibitions provided for by the current law and law enforcement practice.
- A suspect (accused, witnesses) is obliged to take part in investigative measures that require his activity (face-to-face, examination, identification).
- Obtaining, including compulsory, from participants in the process of blood samples, urine, exhaled air, voice samples for further use in evidence. The need for these actions is confirmed by the Constitutional Court of the Russian Federation.
- It is possible to interrogate other people about the circumstances and situations that became known to them from the person who used the witness immunity for the subsequent application of the obtained information in the evidence base.
- The law of the Russian Federation (Article 1.5 of the Administrative Code of the Russian Federation) establishes exceptions to the presumption of innocence. A person in some cases is obliged to prove his innocence. In EU countries, this rule applies to car owners who are required to prove innocence of traffic violations.
The right to refuse assistance
Article 51 of the Constitution of the Russian Federation, the comments on which are used in law enforcement practice, also implies other actions, except refusal to testify. In particular, its content includes the right not to facilitate the criminal prosecution process. It includes:
- Refusal to provide any explanation or information.
- Appearance (guilty plea). If the suspect refused to confess to a crime during the first interrogation, no one has the right to insist on it during subsequent interrogations.
- Failure to issue things, documents or valuables for investigative actions.
Witness liability
As part of the criminal trial, witnesses are always warned about the consequences of giving evidence, as well as responsibility for lying and misleading the investigation or court.
Perjury as a crime against justice was known back in ancient Rome. The modern law of the Russian Federation implies by it the reporting of knowingly false information about facts and circumstances that are known to the witness (expert, specialist) and may affect the results of the investigation or the court decision. Responsibility for it is provided for by Art. 307 of the Criminal Code.
The practice of criminal investigation shows that most often falsely witnesses are cohabitants (civil spouses), friends, neighbors and acquaintances of the victims and the accused. The reason for their actions for the most part is sympathy for possible criminals or their relatives, distrust of the police, but attempts to "settle accounts" are also frequent.
As part of a crime under Art. 307 of the Criminal Code, several situations are possible:
1. Good faith misconception when a witness incorrectly perceives a fact that affects the results of an investigation.
2. The use of lies as a means of protection against suspicion. A common situation is when witnesses refuse to report information or even give their own testimony in order to avoid accusations of crime. But here, too, article 51 of the Constitution of the Russian Federation can be applied. Exempting Use Examples:
- The witness claims that he did not buy drugs from the accused, because in this case he actually confesses to a crime under Art. 228 of the Criminal Code. His deliberate lie does not entail responsibility, since he protects himself from slander.
- The witness provides false information, as he believes that otherwise he would become a suspect in the crime.
If a person through a lie tries not to admit a criminal offense, then the responsibility under Art. 307 of the Criminal Code does not occur for him, because the Constitution of the Russian Federation (Article 51) protects against self-incrimination. But the situation is completely different if they give false testimony for the sake of public opinion. People often try to appear more conscious, law-abiding, or mindful than they really are.
3. Knowingly false denunciation (reporting a crime) is often used to ward off suspicion. Responsibility for this crime is provided for by Art. 306 of the Criminal Code.
The quality and results of justice are directly dependent on people fulfilling their civic duty. However, the warning of responsibility for perjury is still perceived by many as an empty formality. Therefore, the level of crimes under Art. 306-307 of the Criminal Code of the Russian Federation remains high.
Other types of witness immunity
The Constitution of the Russian Federation (51 article in part 2) provides for cases of exemption from giving evidence, depending on the status of the witness and the circumstances that he must explain. This list includes:
- Judges or jurors - about the facts that became known to them in the framework of a specific criminal case.
- Lawyers and advocates - information that they became aware of in the process of providing legal services. Valid for criminal and civil proceedings.
- Priests (Christianity, Buddhism, Islam) cannot disclose information received from parishioners in the process of confession. At the same time, representatives of sects and creeds are not entitled to use this type of immunity.
- Deputies of representative bodies of the federal and regional levels have the right to refuse to testify to the circumstances that became known to them during the exercise of their powers.
- Diplomats (all endowed with this status, including technical workers) - about any circumstances and facts. But the immunity ceases to be valid if consent is obtained from a foreign state for interrogation.
Certain spaces are allowed in this list. For example, assistant lawyers, translators, and representatives of citizens who are not their relatives do not have immunity. All of them can be interrogated without the right of refusal.
The Constitution of the Russian Federation, Article 51 is a very important norm for domestic legislation and a country that has survived the time of mass repression. She is the guarantor of the observance of human and civil rights during communication with law enforcement and judicial authorities.