Criminal liability for refusing to testify

In the work of investigative bodies, situations often arise in which victims or witnesses refuse to testify in cases that are under investigation. Meanwhile, the information of these persons can have a significant evidentiary value for production. In this regard, the law provides for criminal liability for refusing to testify. Consider the cases when it comes.

General information

Refusal to testify can be expressed in different 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, can be stated directly to the prosecutor or judge, as well as directly to the investigator conducting the proceedings. Legislation establishes a 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 the evasion of subjects

Law enforcers, both at the stage of preliminary investigation and at its conclusion, understand that the interests of legal proceedings, which act as a specific object of the crime under art. 308, are significantly violated in the commission of an act. Meanwhile, authorized persons often do not try to correct the situation that has arisen and thus show condescension towards subjects that neglect to fulfill their civic duty. In particular, the fact of the rare application of art. 308 in practice.

It is worth mentioning that one of the reasons for the inactivity of the criminal bodies is their awareness of their impotence in ensuring the proper protection of victims and witnesses against the vengeance of those persons whom they are to testify against. In view of quite objective reasons, an effective program for the protection of individuals who witnessed the crime has not been developed in Russia at present. The opinion is also expressed that providing a long- term physical protection of victims and witnesses is quite an expensive procedure. In fact, fearing for their lives and the health of their loved ones, citizens shirk their responsibilities.

Exceptions

By 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 states that no one can be compelled to testify against himself and his loved ones. The circle of the latter is defined in the UK. They are the members of the family, the spouse of the citizen summoned for questioning.

Specificity of consequences of evasion

Refusal to testify in court jeopardizes the outcome of the proceedings. Inaction of citizens creates obstacles to the application of punishment to the perpetrators. In addition, the financial interests of the state are affected. Thus, refusal to give testimony by the victims in cases of causing moderate and serious harm to health, when injuries were received in the course of the conflict between them and their acquaintances, entails unreimbursed budget expenditures in connection with the maintenance of victims in inpatient medical institutions, and the conduct of urgent surgical interventions. For crimes whose guilty parties are established, prosecutors in the interests of the state file civil suits demanding that these costs be recovered from the perpetrators. Such an opportunity is lost if, due to the unwillingness of the subject to provide the necessary information, the investigating authorities can not indict a particular person.

Classification

The responsibility for refusing to testify is somewhat less than for providing false information. In the latter case, the subject directly prevents the identification of truth, directs the investigating authorities along the wrong path. Refusal to testify by a witness or victim 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 refusal to testify can be veiled or direct. In the latter case, an open statement of the citizen is expected that he will not provide any information on the case. In the case of veiled reluctance, the interrogated person starts referring to some circumstances. For example, he can say that he does not remember or did not see anything.

Nuances

A crime, the composition of which is provided for by Art. 308, is deemed to be committed at the time of the refusal. It will not be regarded as an illegal act to evade the subject from appearance on the agenda. In this case, a citizen may be forcibly brought to the body of inquiry. It is not allowed to apply physical measures to a person who does not want to provide information known to him.

Refusal to give evidence and silence about the circumstances of the case

The issue of the difference between these crimes for quite a long time is the subject of a dispute among specialists. For example, an eyewitness reports that he allegedly does not know anything about the incident. In this case, he says untruth. Accordingly, some experts propose its action to qualify as providing false information. Meanwhile, it is more correct to consider what was done by refusal. In this case, the citizen does not create active obstacles to the establishment of truth.

It is difficult to agree with the statement that it can never be considered as perjury to silence information. The determining criterion is the influence of the guilty person's behavior on revealing the truth. If his actions create obstacles, they are considered as providing false information. If his behavior does not help to identify the circumstances of the case, then there is a refusal.

Special cases

Considering the above approaches, consider the situation in which the subject partially provides truthful information, while keeping silent about some important facts. For example, an eyewitness correctly described the actions of the murderer. However, he kept silent about the fact that the victim started the first quarrel, began to deliver strikes to the guilty party. As a result, the court can qualify the crime as a murder committed from hooligan motives. In fact, it is not aggravated by circumstances, or mitigated by them (for example, the state of affect), or is not at all an act due to the citizen's application of the necessary defense. In this case, the interrogated not only did not help, but also actively prevented the establishment of truth. In this regard, he must bear responsibility not for refusal, but for perjury committed by holding back essential information.

The subjective part

In the qualification of an act, the motives for committing it are not taken into account. On the subjective side, the crime presupposes the existence of a direct intent. Refusing to testify, the subject understands that he does not provide important information for the investigation and wishes this.

Special categories of persons

The legislation establishes a circle of subjects that can not be subjected to interrogation. On procedural provisions, such persons are citizens who:

1. Due to mental or physical deficiencies, they can not give an account of their actions and lead their own behavior. Such citizens are not able to adequately perceive the circumstances of the incident, respectively, they will not give the right testimony.
2. They have diplomatic immunity. Procedural actions against these persons are carried out either with their consent or at their request.

Witness immunity and the privilege of self-blame

It has already been said above that the punishment under art. 308 can not be applied if the citizen does not wish 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 range of persons and the legal consequences differ. Privilege extends to information about the subject's own actions. It consists in the fact that the punishment is not applied either in the provision of false information or in the reluctance to provide any data.

Witness immunity applies only to those who have not committed unlawful acts or are not acting as stakeholders in the proceedings. Legislation grants the relatives and spouse of the citizen the right not to provide any information. Accordingly, the responsibility for refusing to testify by a witness who is part of these persons does not come. However, the punishment for them can be applied for providing false information. Thus, if a spouse or relative agrees to testify, but at the same time says untruth, he is involved in art. 307.

Preservation of data confidentiality

Witness immunity also extends to officials who, due to the performance of their professional duties, have become aware of certain facts that are important for the investigation, but which, in doing so, constitute a secret protected by law. Such subjects include notaries, deputies, clergymen, lawyers, etc.

Conclusion

The responsibility for refusing to testify by a witness / victim exists formally. In practice, it is rarely used in practice. At the same time, authorized officials have the right to use legal coercion. Before commencement of interrogation, subjects are warned of liability under articles of the Criminal Code for refusing to testify and providing false information. In Art. 308, in particular, as punishment punish penalty, corrective or compulsory work, as well as arrest. The threat of sanctions, in fact, should act as a mechanism for regulating the behavior of the subject. Together with this, the citizen should be guaranteed protection from the encroachments of the offender against whom he testifies, or from his acquaintances, relatives and other interested persons.