In the work of investigative bodies, situations often arise in which victims or witnesses refuse to testify in cases under investigation. Meanwhile, the information of these persons may be of substantial evidentiary value for the proceedings. In this regard, the law provides for criminal liability for refusing to testify. Consider the cases when it occurs.
General information
Refusal to testify may take various forms. For example, subjects summoned for interrogation evade appearance. Also, the reluctance of individuals to provide information known to them and relevant to the case may be declared directly to the prosecutor or judge, as well as directly to the investigator conducting the proceedings. The legislation establishes the circle of persons who are obliged to explain the facts related to the crime. In the Criminal Code, refusal to testify is punishable under Art. 308.
Reasons for Subject Evasion
Law enforcers, both at the stage of the preliminary investigation and upon its completion, understand that the interests of legal proceedings, which act as a specific object of a crime under Art. 308, are substantially violated when the act is committed. Meanwhile, authorized persons often do not try to correct the situation that has arisen, and thus show condescension to subjects who are dismissive of the performance of their civic duties. It is, in particular, the fact of the rare use of Art. 308 in practice.
It is worth saying that one of the reasons for the inaction of the criminal authorities is their recognition of their powerlessness in ensuring the proper protection of victims and witnesses from the revenge of those persons against whom they must testify. Due to quite objective reasons, at present in Russia an effective program has not been developed to protect persons who have witnessed a crime. It is also suggested that providing continued physical protection for victims and witnesses is a rather costly procedure. Actually, fearing for their lives and the health of loved ones, citizens shy away from responsibilities.
Exceptions
In imposing a penalty for refusing to testify, article 308 makes an important reservation. It ensures the observance of the constitutional rights of a citizen. In particular, in Art. 51 of the basic law says that no one can be forced to testify against themselves and their loved ones. The range of the latter is defined in the UK. They are family members, spouse of a citizen called for interrogation.
The specifics of the consequences of evasion
Failure to testify in court jeopardizes the outcome of the proceedings. Inaction of citizens creates obstacles to the application of punishment to those responsible. In addition, the financial interests of the state suffer. For example, refusal to testify by victims in cases of moderate or serious harm to health, when injuries were received during the conflict between them and their friends, entails unreimbursed budget expenses in connection with the maintenance of victims in inpatient medical facilities and urgent surgical interventions. For crimes the perpetrators of which are identified, prosecutors in the interests of the state file civil suits demanding the recovery of these costs from the attackers. Such an opportunity is lost if, due to the reluctance of the subject to provide the necessary information, the investigating authorities cannot indict a specific person.
Classification
Responsibility for refusing to testify is somewhat less than for providing false information. In the latter case, the subject directly prevents the revealing of truth, directs the organs of investigation along the wrong path. Refusal to testify by a witness or victims implies evasion of assistance to authorized structures contrary to the requirements of the law.
On the objective side, this is expressed in the form of inaction. It was said above that the refusal to testify can be veiled or direct. In the latter case, an open statement by the citizen is supposed that he will not provide any information on the case. In case of veiled reluctance, the interrogated person begins to refer to some circumstances. For example, he may say that he does not remember or did not see anything.
Nuances
Crime, the composition of which is provided for by Article. 308 is deemed perfect at the time of refusal. It will not be regarded as an illegal act evading the subject from appearing on the agenda. In this case, a citizen may be forcibly brought to the body of inquiry. The application of physical measures to a person who does not want to provide information known to him is not allowed.
Refusal to testify and default on the circumstances of the case
The question of the difference in these crimes for quite a long time has been the subject of dispute among specialists. For example, an eyewitness reports that he allegedly does not know anything about the incident. In this case, he is telling a lie. Accordingly, some experts suggest qualifying its action as providing false information. Meanwhile, it is more correct to consider what was done a failure. In this case, the citizen does not create active obstacles to establishing the truth.
At the same time, it is difficult to agree with the statement that it can never be considered as perjury the omission of information. The defining criterion is the influence of the guilty behavior on revealing the truth. If his actions create obstacles, then they are considered as providing false information. If his behavior does not contribute to revealing the circumstances of the case, then there is a denial.
Special cases
Considering the above approaches, we consider a situation in which the subject partially provides true information, while being silent about some important facts. For example, an eyewitness correctly described the actions of the killer. However, he did not mention that the victim started the quarrel first, began to strike at the guilty. As a result, the court can qualify the crime as murder committed out of hooligan motives. Moreover, in fact, it is not aggravated by circumstances, or mitigated by them (for example, the state of affect), or is not an act at all due to the citizen's use of the necessary defense. In this case, the interrogated not only did not help, but actively prevented the establishment of the truth. In this regard, he should be liable not for refusal, but for perjury carried out by silence of essential information.
Subjective part
When qualifying an act, the motives for its commission are not taken into account. On the subjective side, the crime involves the presence of direct intent. Refusing to testify, the subject understands that he does not provide information important for the investigation and desires it.
Special categories of persons
The legislation establishes a circle of subjects that cannot be interrogated. According to the procedural provisions, such persons are citizens who:
- Due to mental or physical disabilities, they cannot give an account of their actions and manage their own behavior. Such citizens are not able to adequately perceive the circumstances of the incident, respectively, they will not give the correct evidence.
- Possess diplomatic immunity. Procedural actions in relation to these persons are carried out either with their consent, or at their request.
Witness immunity and privilege of self-incrimination
It has already been said above that the punishment under Art. 308 cannot be applied if a citizen does not want to provide information about himself or his relatives. These situations have a number of common features, but there are differences between them. First of all, the circle of persons and legal consequences differ. The privilege extends to information about the subject's own actions. It lies in the fact that the punishment is not applied neither when providing false information, nor if you do not want to provide any data.
Witness immunity applies only to those who have not committed unlawful acts or who do not act as an interested party in the proceedings. The legislation provides the relatives and spouse of the citizen the right not to provide any information. Accordingly, liability for refusing to testify by a witness included in the circle of these persons does not arise. However, they may be punished for providing false information. Thus, if the spouse or relative agrees to testify, but at the same time is telling a lie, he is involved under Art. 307.
Data privacy
Witness immunity also extends to officials who, by virtue of their professional duties, have become aware of certain facts relevant to the investigation, but which in so doing constitute a secret protected by law. Such entities include notaries, deputies, clergy, lawyers, etc.
Conclusion
Responsibility for the refusal to testify by the witness / victims exists formally. In reality, it is rarely used in practice. At the same time, authorized officials have the right to use legal coercion. Before the interrogation begins, subjects are warned of responsibility under the articles of the Criminal Code for refusing to testify and providing false information. In Art. 308, in particular, fines, corrective or compulsory labor, as well as arrest, are punishable. The threat of sanctions, in fact, should act as a mechanism for regulating the behavior of the subject. Along with this, the citizen should be guaranteed protection from the encroachments of the offender against whom he testifies, or from his friends, relatives and other interested persons.