The testimonies of the victims and witnesses are considered the most reliable evidence. Even in ancient Russian lawyers such participants in the process were mentioned as rumor - the one who heard about the event from sources worthy of respect, and the video - the person who saw the incident. The legislator is interested in obtaining evidence, since it is on them that the evidence system is built. Current legal norms establish the obligation for witnesses / victims to appear for questioning.
What is a testimony?
Under them should be understood the information that the citizen provides during the interrogation. A conversation with him is held as part of pre-trial proceedings. A witness may be questioned about any circumstances relevant to the process. Among the information may be data on the identity of other participants in the proceedings, the relationship of the citizen with them.
Explanations
The testimony of the witness / victim is expressed in the form of oral reports of citizens who were not involved in the proceedings as accused / suspects. It contains information about circumstances and facts that have evidentiary value, perceived from the words of other entities or in person. Interrogation is carried out in accordance with the rules of the articles of the CPC.
Presentation Features
The source of the evidence is the witness / victim report given verbally. This form provides a direct perception of outgoing information, reduces the likelihood of distortion of information. A citizen has the right to present the data with his own hand, but after their oral expression. The information contained in various complaints, explanations, statements is not considered evidence. This information can be used as the basis for calling the subject for questioning.
Procedural position
A direct source of information is a citizen who has not been held accountable in a criminal case. This circumstance determines the legal status of the person. The procedural status of a citizen in the framework of production is focused on obtaining truthful information from him. The law defines the duties and rights of victims and witnesses, which are a guarantee of the inadmissibility of distortion of the transmitted information.
Responsibility
The legislation provides for a number of articles in accordance with which penalties for false information or refusal to provide information can be applied to a witness / victim. This is art. 307, 308 of the Criminal Code. In addition, liability for false denunciation is provided. It is established by Art. 306 of the Criminal Code. These standards are aimed at observing the procedural order in the process of obtaining evidence. A citizen involved in interrogation as a witness or victim is warned of responsibility under Art. 306-308 of the Criminal Code . Any person who is aware of the circumstances of the incident can be called in for a conversation.
Art. 308 of the Criminal Code
The refusal of victims / witnesses to testify, the evasion of victims from the examination, examination of him in cases where their consent is not required, or the provision of handwriting samples / other materials to perform a comparative study, shall be prosecuted. Sentence of Art. 308 of the Criminal Code may provide for:
- Fine up to 40 thousand p. or recovery equal to salary / income for 3 months.
- Up to 360 hours of compulsory work.
- Up to three months arrest.
- Up to a year fixed. works.
The norm establishes an exception when a citizen is not held accountable. In particular, Art. 308 of the Criminal Code does not apply to the refusal of the subject to testify against his family or spouse, himself. This exception is established pursuant to Art. 51 of the Constitution.
Art. 308 of the Criminal Code with comments
The public danger of the crime, the liability for which is established in the norm, is that the commission of this act does not allow or significantly complicates the adoption of a procedural decision that takes into account the actual circumstances of the case. Accordingly, it is difficult to ensure the protection of the interests and rights of citizens, organizations, the state and society.
Manifestation forms
Objectively, a crime under Art. 308 of the Criminal Code , may manifest in inaction. However, in some cases, it may be preceded by an active citizen action. In particular, it can be a statement in which a citizen refuses to testify. Act established by Art. 308 of the Criminal Code , may also be expressed by the absence of the subject to be interrogated at the call of the inquiry officer, court, investigator. A citizen commits a crime by refusing both to give evidence in general on the case, and to provide any specific information for a specific circumstance, referring to the fact that he does not remember or does not know any information. If the subject withholds information about some facts during the interrogation, then these actions are not qualified under Art. 308 of the Criminal Code, and in accordance with the rule providing for liability for the provision of knowingly false data.
Specificity
The corpus delicti is formal. The act is considered completed at the time of the refusal. If the subject, previously evading the testimony, subsequently changes his decision and provides the information he knows, he is released from liability under the rule in question. This is allowed in accordance with the provisions of Art. 75 of the Code. The norm provides for the removal of responsibility from the person in connection with active repentance.
Subjective part
The guilt of a subject who refuses to provide information known to him is expressed in the form of direct intent. The citizen understands that being called for interrogation, he is obliged to visit him and give truthful testimonies. However, the person does not want to do this, which violates the law. As a motive may be the desire to evade the provision of assistance to law enforcement agencies and the judiciary. A citizen may refuse to testify, wanting to help the guilty party avoid responsibility, for fear of revenge on the part of the subject to whom the information provided by him may be disadvantageous for other reasons.
Nuance
In accordance with the general rule, the motives, as well as the goals of the crime, do not have a decisive influence on the qualification of the deed. But, if in the presence of a real threat to the victim or witness, the authorized bodies do not take measures to ensure security, the compulsion of refusal can be ascertained. Accordingly, the inaction of the citizen will be considered as permissible under conditions of extreme necessity.
Exceptions
In accordance with the provision of Part 1 of Article 51 of the Constitution, a citizen is not allowed to testify against relatives, himself or her husband / wife. The circle of relatives in relation to whom this rule applies is determined by paragraph 4 of Article 5 of the CPC. A note to the rule excludes liability for these citizens for refusing to testify. In addition, the law provides for the obligation to maintain professional secrecy by entities that practice law. Art. 308 of the Criminal Code does not apply to lawyers who refuse to provide information that became known to them in the process of citizens contacting them for legal assistance or in the course of its direct provision. Clergymen who are obliged to maintain confidentiality of confession, jurors, judges, deputies of the State Duma, members of the Federation Council, officials endowed with representative and diplomatic immunity, who must ensure the confidentiality of information that they receive in connection with the exercise of their authority , are also exempted from liability.