Rules for preparing a witness for questioning in court in a criminal case

In accordance with labor legislation, the employer is obliged to release the employee from work to perform state or public duties. However, there is no specific list of such responsibilities and one must be guided by other federal laws. As a result, misunderstandings often arise: the employee does not come to work, as it seems to him, for good reasons, and the employer fires him for absenteeism. In the article we will tell you in what cases the employer is obliged to let the employee go and what procedure must be followed, how and by whom the time of his absence from work is paid, and we will consider one of the most common reasons for the absence of an employee from work, which relates to government duties - his appearance in court.

What are state and public responsibilities?

By virtue of Part 1 of Art. 170 of the Labor Code of the Russian Federation, the employer is obliged to release the employee from work while maintaining his place of work (position) for the duration of the performance of state or public duties if, in accordance with the Labor Code and other federal laws, these duties must be performed during working hours.

Two obligations of the employer in relation to such employees follow from this provision:

1) release them from work;

2) keep their place of work.

What are state and public responsibilities? The Labor Code refers to them, in particular:

• participation of workers in collective negotiations, preparation of a draft collective agreement, agreement (Article 39);
• consideration of labor disputes as a member of the commission (Article 171);
• donating blood and its components as a donor (Article 186);
• participation of members of elective collegial bodies of trade union organizations who are not exempt from work, as delegates in the work of congresses, conferences, participation in the work of elective collegial bodies of trade unions, and, if provided for by a collective agreement, also short-term trade union training (Article 374 );
• participation in the resolution of a collective labor dispute by employees who are members of the conciliation commission, labor arbitrators (Article 405).

Other federal laws include such responsibilities:

• carrying out and ensuring emergency rescue and other urgent work in the event of mobilization;
• fulfilling the duties of a registered candidate for an elective position to be filled in a state authority or local government body;
• performing the duties of a member of an election commission or referendum commission to participate in the preparation and conduct of elections, referendums;
• performance of military duties, including calling to the military registration and enlistment office, medical examination, military training, etc.;
• participation of teaching staff in the Unified State Examination;
• participation in fire extinguishing or service (duty) by volunteer firefighters;
• appearance before the bodies of inquiry, preliminary investigation, prosecutor's office, tax inspectorate or court as a witness, victim and his legal representative, expert, specialist, translator and attesting witness;
• performing the duties of a jury or arbitration assessor.

Called as a witness and what happens if you don’t show up?

The law is structured in such a way that witnesses are the most significant participants in the process and without their testimony, a criminal or civil case can be considered from different angles, and here the court always warns witnesses who appear in court about criminal liability for giving false testimony and I want to note that the plaintiff and defendant there are no warnings about criminal liability, so I think it is now clear that for a correct and fair decision by the court, it is desirable that there be witnesses in the case, and preferably more than one. However, if you have received a summons for a criminal case, and the person who is being accused is not at all familiar to you, then it is better not to refuse to go to court, since in this case you may be forcibly brought to court.

We can talk for a long time about subpoenas, letters, correct notifications, but the main thing here is the timing of notifications and your control. If you don’t know what to do, then write to me and we’ll think about what to do, since everyone has their own case and it is individual and do not delay in resolving the issue in civil and especially criminal cases.

Compensation for the performance of state or public duties.

According to the general rule provided for in Part 2 of Art. 170 of the Labor Code of the Russian Federation, a state body or public association that has engaged an employee to perform state or public duties, pays him compensation for the period of performance of these duties in the amount determined by the Labor Code, other federal laws and other regulatory legal acts or a decision of the relevant public association.

At the same time, the Labor Code for the performance of certain duties does not establish the payment of compensation, but the retention of average earnings for the employee, in particular, for persons participating in collective bargaining (Article 39), members of labor dispute commissions (Article 171), donors (Article 186), members of conciliation commissions and labor arbitrators (Article 405).

But the procedure for paying for the participation in the work of trade unions of members of their elected collegial bodies who are not exempt from their main work is determined by a collective agreement or agreement (Article 374 of the Labor Code of the Russian Federation).

For your information:

The average earnings of trade union members released from their main jobs are maintained by the all-Russian (interregional) trade union. It is retained for the period of employment (no more than six months) of the trade union worker, if at the end of his term of office the employer was unable to provide him with his previous place of work (Article 375 of the Labor Code of the Russian Federation).

The employer must also retain the average salary for employees undergoing military training (Article 6 of the Federal Law of March 28, 1998 No. 53-FZ “On Military Duty and Military Service”). In addition, they are compensated for other expenses, for example, those associated with renting housing, travel expenses, and business trips.

However, subsequently all these expenses are reimbursed to the employer by the Ministry of Defense[1].

In other cases of performance of state and public duties, the employee receives compensation from government bodies or public associations that involved him in the performance of such duties.

How is a court notice served?

The court notice must be served on the addressee in a manner that allows the fact of service to be established. It is sent to the address specified in the claim. In this case, as a general rule, notices are not sent to the representatives of the parties - it is assumed that the party whose interests he represents will inform them about the place and time of the procedural actions. The postal service delivers the court notice to the addressee - this is what the Law says. In fact, the service will leave the subpoena in the mailbox, and the recipient must personally pick up the documents at the post office. Moreover, the storage period for a court notice is 7 days.

Persons who live together with a participant in the process may be served with a summons only with their consent. The exception is when it comes to recognizing a citizen as incompetent or partially capable. In such cases, the summons is served exclusively on the person against whom the case will be heard. If a person refuses to receive a summons, a corresponding entry is made on it. And the court considers the person to have been properly notified.

Rules regarding the timing of sending and receiving court notices are extremely important. Article 113 of the Code of Civil Procedure of the Russian Federation stipulates that the court sends judicial notices in advance. So that the recipient can familiarize himself and prepare for the consideration of the case. When the parties or other participants in the case have not received notice (other than the expiration of the retention period), the court is obliged to adjourn the hearing. And if he considers the case and makes a decision, then when appealing, such a person can count on the unconditional cancellation of the decision.

The employee received a summons.

First, let's figure out what cases and where an employee can be summoned. These can be civil, administrative and criminal cases. All of them are considered by courts of general jurisdiction. Arbitration courts hear disputes in the field of business and other economic activities.

There are also tax offenses that are considered by tax inspectorates. Accordingly, the employee may be summoned to a court of general jurisdiction or an arbitration court, or the tax office.

In addition, he can be called by the bodies of inquiry, investigative bodies and the prosecutor's office. It should be noted here: in order to qualify such calls as the performance of public duties, the employee must have a certain status. Thus, guided by the norms of the Civil Procedure Code, when considering civil cases, an employee can act as:

• parties (plaintiff or defendant);
• witness;
• juror;
• specialist, expert, translator.

In accordance with the Code of Administrative Procedure, when considering administrative cases, an employee may be:

• party (administrative plaintiff or administrative defendant);
• witness;
• specialist, expert, translator.

Finally, when considering criminal cases, by virtue of the provisions of the Code of Criminal Procedure, an employee may be:

• the victim (his legal representative);
• the accused;
• civil plaintiff;
• witness;
• attested;
• specialist, expert, translator.

An employee can be summoned to an arbitration court as a witness, specialist, expert, translator, as well as an arbitration assessor.

However, not all of these statuses give the employee the right to receive guarantees in accordance with Art. 170 Labor Code of the Russian Federation. In particular, participation in legal proceedings as a plaintiff or defendant and, of course, as an accused is not considered to be the performance of public duties by an employee. For everyone else, such an obligation is established regardless of what process (civil, administrative or criminal) the proceedings take place.

Guided by the provisions of the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Tax Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and other federal laws and regulations, the employee performs state duties if he is summoned to court, the tax inspectorate, inquiry bodies, investigative bodies and the prosecutor's office as a witness or specialist , expert, translator, victim (his legal representative), attesting witness, and also if he serves as a juror or arbitrator.

For your information:

The bodies of inquiry include internal affairs bodies, police departments (divisions, divisions, points), FSSP bodies, fire inspection bodies (Article 40 of the Code of Criminal Procedure of the Russian Federation).

Civil case

Since 2002, in the Russian Federation, thanks to the Civil Procedure Code, it has become legal to conduct a hearing of a case without the personal presence of both the author of the statement of claim and the defendant, in certain cases even without representatives of both parties. Of course, in practice, each participant must be notified of the planned meeting, but he has the right not to attend it if there are good reasons for this.

After some time, additions were made to the article: the trial can be held without the defendant 3 times in a row, and at the fourth meeting the case can be considered without him.

The interested parties in a civil case are both the plaintiff, who knows about the date of the trial from the clerk, and the defendant, who theoretically received a subpoena. Some courts (for example, Primorsky) practice remote access to information and post information on their special website. As a result, the defendant is often left in the dark and risks knowingly losing the case.

Registration of execution of state duties.

The release of an employee from work to perform government duties is formalized by an order of the employer, which is issued in any form.

The basis for issuing an order when summoning an employee to court, the prosecutor's office, the tax inspectorate or bodies of inquiry and investigation is a summons (notification). A judicial summons is recognized as one of the forms of judicial notices and summonses in criminal, administrative and civil cases.

Court summonses and other court notices contain:

• name and address of the court;
• time and place of the court hearing;
• name of the addressee - the person notified or summoned to court;
• an indication as to whom the addressee is notified or called;
• name of the case for which the addressee is notified or summoned.

The bodies of inquiry also summon witnesses and victims for questioning by subpoena. The summons indicates who is being summoned and in what capacity, to whom and at what address, and reflects the date and time of appearance for questioning (Article 188 of the Code of Criminal Procedure of the Russian Federation).

In addition, the summons indicates the obligation of the summoned persons to appear, and also indicates the consequences of failure to appear without good reason.

For your information:

Jurors and arbitration assessors are summoned to participate in court hearings by sending a notice to the jury or by a court ruling.

Please note that if an employee has submitted a summons or other notice from which it does not follow that he is being called as a witness, victim or other person to perform government duties in the framework of a criminal or other case, then the employer is not obliged to release him from work.

Thus, in the Appeal ruling of the Moscow Regional Court dated September 12, 2016 in case No. 33-22689/2016, the reason for the employee’s absence from work in connection with his summons to court was recognized as disrespectful, and the order to impose a disciplinary sanction on him was considered legal.

The essence of the case was that the investigator, on his own initiative, summoned the employee to court as a witness, since he needed it to support the petition in the criminal case.

At the same time, no evidence was presented of the employee being summoned to court or law enforcement agencies to testify as any procedural status.

The judges indicated that the investigator's notification of the employee's appearance is not considered confirmation of his calling as a witness in a criminal case in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation. Moreover, this notification is also not a summons to the plaintiff to carry out any investigative actions, to give evidence to the investigator in the framework of a criminal case and to carry out investigative actions, but is recognized only as an initiative of the investigator himself to support the presentation submitted by the prosecutor in court.

In addition, it was established that the court itself did not call the employee as a witness.

Of course, in this situation we can say that the employee suffered through no fault of his own. He probably thought he had done his duty honestly. But it turned out differently.

Therefore, you need to carefully study the agenda. If it does not follow from its content that the employee has the status of a person performing public duties, and especially if he is a plaintiff or defendant or their representative in civil or administrative proceedings, the employee first needs to explain this. And release him from work in accordance with Art. 170 of the Labor Code of the Russian Federation, the employer is not obliged.

There are other options here as well. For example, an employee can be granted leave without pay.

In addition to the summons, many employers request employees to submit a statement of release from work. Despite the fact that such a document is not provided for by the Labor Code, we believe that it would be useful. The obligation to present it can be established by local regulations.

An employee’s absence from work in connection with the performance of state duties should be noted in the work time sheet with the letter code “G” or the digital code “23” (absence from work while performing state or public duties according to the law).

Sample summons to court for divorce

Few people know about the contents of this document, since not everyone has had to deal with divorce proceedings.
Typically, the front side of the document is served on the defendant. It contains basic information, the knowledge of which is necessary for the actual hearing on a vital case. In more detail, the document consists of the following information:

1. serial number of the civil case;
2. the name of the government agency to which this subpoena must be submitted. The address of the defendant, which is entered by the plaintiff, must be indicated here. If during the course of the case it turns out that the citizen lives at a different address, then the previously drawn up summons is simply redirected to him;
3. further indicate the surname, name and patronymic of the defendant;
4. It is necessary to enter the number and name of the court in which the case is planned to be considered. This should only take place at the institution to which the relevant application was submitted;
5. after this it must be written that the defendant is obliged to appear at the specified place at the appointed time to consider the divorce case;
6. The last paragraph of this document is the address of the court.

When drawing up a summons, you need to pay close attention to the civil case number, which must correspond to reality. If it is entered incorrectly, the document is considered invalid.

Expenses reimbursed to the employee.

What kind of compensation he is entitled to for the period of performance of public duties and who pays it depends on the status of the employee if he is summoned to court or other authorities. For clarity, we present this information in a table.

Note:

Payment of average earnings is carried out only by the employer at the main place of work, since this is established by the relevant federal law, in particular, Part 3 of Art. 7 of Federal Law No. 70-FZ, Part 3, Art. 131 Tax Code of the Russian Federation. This rule does not apply to witnesses in an arbitration case.

Payment to an employee of average earnings by a government agency is carried out based on the actual time spent on performing duties by these persons and their average daily earnings, calculated in the manner established by Art. 139 of the Labor Code of the Russian Federation, the amount of monthly salary. In this case, a part-time working day spent by a person in connection with proceedings in a civil or criminal case is counted as one working day (eight hours).

Procedure for issuing subpoenas

This procedure is described in:

• Civil Procedure Code (Civil Procedure Code);
• government decree “On approval of the rules for the provision of postal services”;
• set of rules for judicial proceedings.

The Code of Civil Procedure states that all interested citizens are invited to court by means of an official letter (registered) or a subpoena with notification of receipt by the addressee. Telegrams, telephone messages and other means of communication are considered alternative methods of notification, thanks to which the attendance of all interested citizens is ensured.

* * *

So, if an employee has submitted a subpoena to the court, the prosecutor's office, the tax inspectorate, the body of inquiry or investigation, by which he is summoned as part of the consideration of a criminal, civil, administrative or arbitration case as a witness, victim (their representative), expert, specialist, translator, witness , a juror or arbitration assessor, the employer is obliged to release him from work for the period specified in the summons. Otherwise, the employer may be subject to administrative liability. If, among other things, the employee who left his job is fired for absenteeism or is subject to disciplinary action, he may have to prepare for legal proceedings.

At the same time, the employer must retain for the employee not only his place of work, but also (in some cases) average earnings, in particular if the employee is a witness in cases considered in the arbitration court and the tax inspectorate, and an arbitration assessor.

If an employee was on vacation while performing state duties, in accordance with Art. 124 of the Labor Code of the Russian Federation, he will need to extend his vacation.

[1] Rules for compensation of expenses incurred by organizations and citizens of the Russian Federation in connection with the implementation of the Federal Law “On Military Duty and Military Service,” approved. Decree of the Government of the Russian Federation dated December 1, 2004 No. 704.

Remuneration in a state (municipal) institution: accounting and taxation, No. 11, 2021

Agenda and its meaning

It is very important that the subpoena is sent in advance. If no one at your place of residence has accepted the summons, it can be sent to the participant in the process at work. The summons is usually sent by mail with notification. That is, after receiving the letter, the participant in the process is required to sign for its receipt. From this moment on, a person’s responsibility for attending court is formed. If a person has not received a summons, the court hearing may be postponed altogether. If a person filed a petition that he cannot attend the meeting, then in this case the court may decide to postpone the case or consider the case without the presence of the party, if the other party agrees.