Under the testimony of the victim or witness is understood as information provided by a person during interrogation carried out in the framework of pre-trial criminal proceedings or in court in accordance with the provisions of the Code of Criminal Procedure. They are an oral report of any facts relevant to a comprehensive investigation and consideration of the case. The testimony must be recorded by an authorized person conducting the interrogation in accordance with the procedure established by the CPC.
Features of the content of information
The subject of testimony includes any circumstances and facts to be proved. They include, among other things, information about the identity of the accused / suspect, the victim, his relations with these persons or other witnesses. Speculation and assumptions, as well as information whose source is unknown, have no evidential value.
The witness can provide information about circumstances that he personally perceived, he saw, and also heard from other persons.
The subject of the testimony of the victim includes any facts to be proved. They include, among other things, information about the relationship of the person with the accused / suspect and witnesses.
Features of the announcement in court of the testimony of the witness / victim
About them it is spoken in Art. 281 Code of Criminal Procedure. In the new edition of the norm, it is established that the disclosure of evidence obtained from a witness / victim as part of a preliminary investigation or as part of a trial, if they do not appear at the hearing, is allowed by agreement of the parties, except as provided for in paragraphs 2 and 6 of this article. A similar rule applies to the demonstration of photographs and negatives taken during interrogations, playback of video / audio recordings, filming.
Exceptions
Their list is enshrined in part 2 of article 281 Code of Criminal Procedure. In accordance with the norm, if a witness / victim does not appear at the hearing, the court may, at the request of any participant in the process or on its own initiative, adopt a decision on the disclosure of information received from these entities earlier, as well as on the playback of video / audio recordings, filming of certain investigative activities carried out with their participation. In the new edition of Art. 281 Code of Criminal Procedure is allowed in the following situations:
- Death of the witness / victim.
- A serious illness of the subject that impedes the appearance of the hearing.
- Refusal of an alien, acting as a witness / victim, from appearing on call to a meeting.
- Natural disaster, other emergency, which created an obstacle to arrival in court.
- The location of the witness / victim has not been established after all measures taken for this.
Nuance
In the cases established in paragraphs 2-5, 2 parts of Art. 281 of the Code of Criminal Procedure of the Russian Federation (in a new statement), a decision on the disclosure of information obtained earlier can be made subject to the possibility of the defendant / accused at the previous stages of the proceedings challenging the evidence in ways established by law. A similar rule has been established with respect to the reproduction of filming or video recording of investigative measures carried out with the participation of a witness / victim. These provisions are enshrined in part 2.1 of the art. 281 Code of Criminal Procedure.
Assumptions and Limitations
At the request of any party, the judge may announce the information obtained during the preliminary investigation or in the meeting if significant contradictions between her and the information obtained at the current hearing are revealed. This position is enshrined in part 3 of article 281 Code of Criminal Procedure.
The refusal of the subject to testify, stated in court, cannot serve as an obstacle to the disclosure of information received from him during the investigation, if this was done in accordance with the requirements of part 2 of article 11 of the Code of Criminal Procedure. This position is enshrined in part 4 of Art. 281 Code of Criminal Procedure.
The demonstration of photographs or negatives, transparencies made during the interrogation, video / audio recordings, filming of investigative measures without announcing the testimonies present in the relevant protocol is not allowed. Such an order is contained in Part 5 of Art. 281 Code of Criminal Procedure.
Disclosure of information received from a minor
It is carried out according to special rules established by the sixth part of Art. 281 Code of Criminal Procedure. The testimonies of a minor witness or victim, previously given in the framework of the preliminary investigation or during the trial, are announced in his absence without interrogation. The same rule applies to the playback of video / audio recordings, filming.
For the adoption of a reasonable and fair sentence, under paragraph 6 of Art. 281 of the Code of Criminal Procedure, the court has the right to make a reasoned decision to re-examine the minor. To do this, the interested party must draw up a petition.
Art. 281 Code of Criminal Procedure with comments
The significance of the provisions enshrined in the article goes far beyond the scope of judicial investigation and proceedings. It was thanks to them that the domestic criminal process really began to acquire the features of an adversarial process. Installed in Art. 281 of the Code of Criminal Procedure of the Russian Federation, the norms should be considered a guarantee of the rights of each accused to conduct a confrontation - interrogation of witnesses showing against him.
The disclosure and, therefore, the use of evidence of the protocols of interrogations obtained during the preliminary investigation or at previous court hearings, as well as other related materials instead of verbal and direct hearing of information, is allowed if they do not appear, usually only with the consent of the parties.
In other words, each party to the proceedings, either on the side of either the prosecution or the defense, can in almost all cases “veto” the announcement of the contents of the protocols of interrogations of persons absent from the hearing. As a result, earlier testimonies become inadmissible evidence.
Specificity of application of the norm
The Criminal Procedure Code as a whole does not attach particular importance to the reasons for the failure to appear of the witness or victim at the hearing. Meanwhile, from the general rule enshrined in Part 1 of Art. 281 Code of Criminal Procedure, there are a number of exceptions. They are reflected in the second part of the same article.
So, if a witness or victim does not appear at the meeting, at the request of either party to the process or on his own initiative, the court may decide to disclose information previously received from these persons during the investigation or at previous hearings. Part 2 of the commented norm provides a list of situations in which this is possible.
In addition, the court has the right to announce the testimony of a witness or victim who appeared at the hearing, previously given to them if there are any contradictions between them.
Guarantees for the accused
If the court, at the request of either party or on its own initiative, decided to publicize the evidence obtained earlier, the accused, on the basis of the principles of equality and adversarial process of the parties, should be able to defend his interests in all ways provided by law. Among them is the opportunity to challenge the information provided. Challenging is possible by filing a petition to exclude unacceptable evidence from the case file, requesting additional information to verify the reliability and admissibility of the information already announced. The accused may also use other means that contribute to the prevention, detection and elimination of various errors in making decisions.
In addition, it is necessary to take into account that all fatal doubts about a person's involvement in a crime arising during the assessment of testimonies read out in court in terms of their admissibility and reliability must, in virtue of provisions of article 49 of the Constitution, be interpreted in favor of the accused.
These approaches are also consistent with the decisions of the ECHR, which interpret the provisions of Article 6 of the Convention for the Protection of Fundamental Freedoms and Human Rights and indicate that exceptions to the principle of adversarial discussion of the evidence in the presence of the accused during a public hearing should not infringe on the interests of the defense. According to general rules, this party to the proceedings should have the opportunity to refute the evidence, as well as interrogate the subjects who gave them at later stages of the process.
At the same time, the accused does not have an absolute right to ensure the attendance of witnesses in court. Under normal circumstances, the courts can assess the appropriateness and necessity of questioning witnesses. The inability to ensure their attendance at the hearing in itself may not interfere with the further progress of the case. Moreover, of course, the conviction of a citizen cannot be based solely or to a greater extent on the testimony of a subject whom the accused could not or did not have the right to interrogate during an investigation or trial in court.
Based on these guarantees, it seems that the testimony of the accused, hiding from the court, used to establish the involvement of another accused in the commission of the crime, is recognized as evidence. Accordingly, they must be announced in accordance with the rules of Article 281 of the Code of Criminal Procedure. This approach is confirmed by the explanations of the ECHR. According to the European Court, in order to ensure the implementation of the provisions of the Convention, an accused whose written testimony obtained during preliminary interrogation was used as a basis for convicting a citizen should be considered as a witness.
Refusal of interrogation
In accordance with the provisions of part 4 of article 281 of the Code of Criminal Procedure, in the event of a lawful refusal by a witness or victim, endowed with witness immunity, from interrogation, the court has the right to announce information received from them earlier in the investigation or at a previous meeting. However, the condition must be met. The court is vested with this right only if previously persons with witness immunity agreed to testify on the facts protected by this immunity and were warned that the information obtained from them could subsequently be used as part of the evidence base for further proceedings (Part 2 of Article 11 of the Code of Criminal Procedure).
Explanations of specialists
A witness or a victim may not testify against themselves, their relatives, spouse. This right is enshrined at the constitutional level. It should be borne in mind that announcing testimonies given earlier in the preliminary investigation or at previous hearings against the accused is considered unlawful if the latter is not in close relationship or marriage with the victim or witness.
A different interpretation of the provisions of Part 2 of Article 11 of the Code of Criminal Procedure could lead to a conclusion contrary to the meaning of Article 281 of the Code. It could be said that any testimony that was given at the stage of the preliminary investigation can be announced in court on the sole formal reason that the right to immunity was clarified to all persons before interrogation, regardless of the subject of these testimonies.
Additionally
In some cases, motivating the announcement of testimonies of persons who did not appear at the hearing, the courts unlawfully refer to the adversarial process of criminal proceedings. It presupposes the equal rights of the parties and, therefore, the prosecutor’s ability to use any evidence during the proceedings, including the minutes of interrogations of persons absent from the hearing. Meanwhile, adversarial proceedings are impossible without a direct study of the evidence base, that is, without a confrontation with witnesses from the prosecution. In this regard, the ban on the publication of interrogation protocols at the meeting is precisely the guarantee of competition.