Witness in court: rights and responsibilities, how to behave

New edition of Art. 168 Code of Civil Procedure of the Russian Federation

1. If witnesses, experts, specialists, and translators fail to appear at the court hearing, the court shall listen to the opinion of the persons participating in the case about the possibility of considering the case in the absence of witnesses, experts, specialists, and translators, and make a decision to continue the trial or to postpone it.

2. If a summoned witness, expert, specialist, or translator does not appear at the court hearing for reasons recognized by the court as disrespectful, he may be subject to a court fine in the manner and in the amount established by Chapter 8 of this Code. If a witness fails to appear at a court hearing without good reason due to a second summons, he or she may be subject to forced attendance.

Anyone can become a witness

Each of us (or almost everyone) can be called as a witness in a civil or criminal case. Having opened the mailbox, a person discovers a summons in it, in which he is invited to appear before law enforcement agencies and in court as a witness. Or ring the doorbell and hand over a summons against signature. Or a phone call...

And many are wondering: what to do next? Is it necessary to come when called? Do I have to answer all questions? And so on.

I will try to give answers to these and many other questions in this article.

False testimony

Despite the fact that each witness is warned about criminal liability for giving false testimony, there are often situations when a citizen reports information that is clearly inconsistent with the circumstances of the case. In such situations, it is possible to initiate a criminal case by sending a statement to law enforcement agencies, but only if there is reliable information about the intent of the interrogated person. After all, sometimes people are called to court months or even years after the events and may not remember everything (for example, as in our example, the witness simply forgot the appearance of the person he was asked about).

Due to forgetfulness, testimony may be given that differs from the pre-trial one. The indictment contains the testimony of all participants in the criminal case (this is a mandatory requirement of the criminal procedure law). During the in-person interrogation, both the lawyer and the state prosecutor monitor the content of the testimony that was given during the investigation and compare it with what was heard in court. If there are significant contradictions, each party has the right to file a motion to have the previous testimony read out. The court, making sure that there are contradictions, almost always agrees with the petition. In the presence of the witness, the interrogation protocol is read out, and clarifying questions are asked. If the contradictions are eliminated, to initiate a criminal case under Art. 307 of the Criminal Code of the Russian Federation is out of the question.

At the same time, when a witness deliberately changed his testimony and openly lies, he faces a fine of up to 80,000 rubles , as well as compulsory or correctional labor. Those who provided false information to the court and this resulted in another person being held accountable for committing a grave or especially grave crime may be punished by imprisonment for up to 5 years .

We remind you that from liability under Art. 307 of the Criminal Code of the Russian Federation, release is possible if a person confesses to lying before the verdict in the case is pronounced.

Learn more about liability for perjury.

How can they be summoned in civil proceedings?

According to the norm of Art. 69 of the Code of Civil Procedure of the Russian Federation, any competent citizen who for some reason knows the circumstances of the case can be a witness in civil proceedings.

Sometimes, opening a mailbox in the morning or evening, a person discovers in it a summons with a summons to the court, investigative authorities or bodies of inquiry. And the question arises: what to do?

First, you need to understand how, according to current legislation, subpoenas must be served.

The delivery of subpoenas to persons participating in civil proceedings is stipulated in the Code of Civil Procedure of the Russian Federation.

Code of Civil Procedure of the Russian Federation. Article 113. Judicial notices and summonses

1. Persons participating in the case, as well as witnesses, experts, specialists and translators are notified or summoned to court by registered mail with acknowledgment of receipt, subpoena with acknowledgment of delivery, telephone message or telegram, by fax or using other means of communication and delivery, ensuring the recording of a judicial notice or summons and its delivery to the addressee. 2. A judicial summons is one of the forms of judicial notices and summonses. Persons participating in the case are notified by court summons of the time and place of the court hearing or the performance of certain procedural actions. Along with a notice in the form of a subpoena or registered letter, copies of procedural documents are sent to the person participating in the case. Subpoenas also serve to summon witnesses, experts, specialists and translators to court. 2.1. State authorities, local government bodies, other bodies and organizations that are parties and other participants in the process may be notified by the court of the time and place of the court hearing or the performance of certain procedural actions only by posting relevant information on the official website of the court on the Internet information and telecommunications network. the period specified in part three of this article, if the court has evidence that the indicated persons were duly notified of the time and place of the first court hearing. Such persons, who have received the first judicial notice in the case under consideration, independently take measures to obtain further information about the progress of the case using any sources of such information and any means of communication. The persons specified in paragraph one of this part bear the risk of adverse consequences as a result of their failure to take measures to obtain information about the progress of the case, if the court has information that these persons have been properly notified of the commenced process, except in cases where measures to receiving information could not be accepted by them due to extraordinary and unavoidable circumstances. If local government bodies, other bodies and organizations do not have the technical capabilities, they have the right to file a petition to send them court notices and summonses without using the Internet information and telecommunications network. 3. Persons participating in the case must be served with court notices and summons in such a way that these persons have sufficient time to prepare for the case and appear in court on time.4. A judicial notice addressed to a person participating in the case is sent to the address indicated by the person participating in the case or his representative. If the citizen does not actually live at the specified address, the notice may be sent to his place of work. 5. A judicial notice addressed to an organization is sent to its location. A judicial notice addressed to an organization may be sent to the location of its representative office or branch, if they are indicated in the constituent documents. 6. The forms of judicial notices and summons provided for by this article are also applied to foreign citizens and foreign legal entities, unless a different procedure is established by an international treaty of the Russian Federation. 7. In order to inform participants in the process about the progress of the case, if technically possible, information about the acceptance of a statement of claim or application for proceedings, about the time and place of the court hearing or the commission of a separate procedural action is posted by the court on the official website of the relevant court on the Internet information and telecommunication network at the specified in part three of this article, the deadline, and in cases with shortened consideration periods - no later than three days before the start of the court hearing or the commission of a separate procedural action.

In other words, a summons whose delivery has not been confirmed cannot be considered served. This is stipulated in the Code of Civil Procedure of the Russian Federation.

Code of Civil Procedure of the Russian Federation. Article 115. Delivery of subpoenas and other court notices

1. Judicial summonses and other judicial notices are delivered by mail or by a person whom the judge instructs to deliver them. The time of their delivery to the addressee is recorded in the manner established by postal organizations or on a document to be returned to the court. 2. The judge may, with the consent of the person participating in the case, issue a summons or other judicial notice to him for delivery to another person being notified or summoned to court. A person who has been instructed by a judge to deliver a subpoena or other judicial notice must return to the court the counterfoil of the subpoena or a copy of the other judicial notice with a signature from the addressee for its receipt.

Receipt of the summons must be confirmed. Confirmation may be the signature of the person receiving the summons or a member of his family.

Code of Civil Procedure of the Russian Federation. Article 116. Service of summons

1. A judicial summons addressed to a citizen is handed over to him personally against a signature on the counterfoil of the summons, which must be returned to the court. A summons addressed to an organization is handed to the appropriate official, who signs for its receipt on the counterfoil of the summons. 2. If the person delivering the summons does not find the citizen summoned to court at his place of residence, the summons is handed to one of the adult family members living with him with their consent for subsequent delivery to the addressee. If a citizen is summoned to court in a case on recognizing him as incompetent or partially capable, a note is made on the summons about the need to serve such a summons to the addressee in person. Serving a summons in a case declaring the addressee incompetent or partially capable to other citizens is not permitted. 3. In the temporary absence of the addressee, the person delivering the summons notes on the counterfoil of the summons where the addressee has gone and when he is expected to return.4. If the location of the addressee is unknown, a note about this is made on the summons to be served, indicating the date and time of the action taken, as well as the source of information.

However, a summons to testify can be carried out in other ways. According to the text of this article, “ a summons can be transmitted not only by telephone message, telegram, but also using any other means of communication

»
.
At the same time, the concept of “other means of communication” is not deciphered. Therefore, a call using, say, SMS, if there is confirmation from the telecom operator about delivery and that the number belongs to the called subscriber, will be legal.

Calling as a witness in criminal proceedings

In Art. 188 of the Code of Criminal Procedure of the Russian Federation clearly explains that a citizen can be summoned by means of a subpoena only for interrogation. However, if we take into account the interpretation of Sec. 26 of the Code of Criminal Procedure of the Russian Federation ( interrogation, confrontation, identification, verification of testimony

), it becomes clear that a subpoena can also summon a citizen to carry out other investigative actions.

Code of Criminal Procedure of the Russian Federation. Article 188. Procedure for summoning for interrogation

1. A witness or victim is summoned for questioning by a summons, which indicates who is summoned and in what capacity, to whom and at what address, the date and time of appearance for questioning, as well as the consequences of failure to appear without good reason. 2. The summons is handed to the person summoned for questioning against a signature or transmitted via means of communication. In the event of the temporary absence of a person summoned for interrogation, a subpoena is given to an adult member of his family or transferred to the administration at his place of work or, on behalf of the investigator, to other persons and organizations that are obliged to hand over the subpoena to the person summoned for interrogation. 3. A person summoned for questioning must appear on time or notify the investigator in advance of the reasons for failure to appear. In case of failure to appear without good reason, a person summoned for questioning may be brought in or other procedural coercive measures may be applied to him, provided for in Article 111 of this Code. 4. A person under the age of sixteen is summoned for questioning through his legal representatives or through the administration at the place of his work or study. A different procedure for calling for questioning is allowed only if it is caused by the circumstances of the criminal case. 5. The serviceman is summoned for questioning through the command of the military unit.

As in the case of subpoenas in a civil case, the method of notifying a witness of the need to appear is not limited to serving the subpoena against the signature of the citizen himself or a member of his family. The article also contains the notorious concept “ using means of communication

».

Is it mandatory to appear when called as a witness?

In civil proceedings

Witnesses in civil proceedings can be called by the plaintiff, the defendant, or a third party participating in the process. The Civil Procedure Code gives the court the right, in the event of a witness’s failure to appear, to apply procedural coercive measures, such as a fine, delivery to court... However, this rule remains, as a rule, only on paper. In practice, the judge asks the party in the case who requested to call a witness what are the reasons for the witness’s failure to appear in court, and continues the hearing of the case.

Code of Civil Procedure of the Russian Federation. Article 168. Consequences of failure of witnesses, experts, specialists, interpreters to appear at a court hearing

1. If witnesses, experts, specialists, and translators fail to appear at the court hearing, the court shall listen to the opinion of the persons participating in the case about the possibility of considering the case in the absence of witnesses, experts, specialists, and translators, and make a decision to continue the trial or to postpone it. 2. If a summoned witness, expert, specialist, or translator does not appear at the court hearing for reasons recognized by the court as disrespectful, he may be subject to a fine of up to one thousand rubles. If a witness fails to appear at a court hearing without good reason due to a second summons, he or she may be subject to forced attendance.

In criminal proceedings

Unlike civil proceedings, when participating as a witness in criminal proceedings, failure to appear in court when summoned can result in unpleasant consequences.

Code of Criminal Procedure of the Russian Federation. Article 113. Arrest 1. In case of failure to appear when summoned without good reason, the suspect, accused, as well as the victim, witness and the person in respect of whom the criminal case has been separated into separate proceedings in connection with the conclusion of a pre-trial agreement on cooperation with him/her may be brought in . 2. Arrest consists of forcibly bringing a person to an inquiry officer, investigator or to court.

In practice, if the court considers the possible testimony of a witness to be significant, in case of failure to appear when summoned, the judge may postpone the hearing on the case to another date. However, in case of regular failure to appear when summoned, the judge may apply procedural coercive measures.

Moreover, if a person regularly fails to appear when called, law enforcement officers may decide that the person has something to hide and may become interested in the identity of the evader.

So if the person being summoned has valid reasons for failing to appear in court, the best solution would be to notify the court in advance of such reasons.

Repeated interrogation

Often the parties consider it necessary to declare the re-examination of a particular witness in court, for example:

after questioning other persons, it became necessary to eliminate contradictions;
the defendant gave evidence where he spoke about the events, but the witness questioned earlier kept silent about this in his testimony;
Circumstances arose indicating a discrepancy between the testimony of the previously interrogated person and the established facts.

A request for another interrogation must be especially carefully motivated, because you need to convince the judge that a second procedure is necessary to consider the case. Sometimes a citizen who has already been interrogated earlier, with the permission of the presiding officer, remains in the hall, and questions arise to him while another person is testifying. The judge has the right to simultaneously clarify something with the person remaining in the room; this is called cross-examination.

Here is an example of a court hearing in one of the cases:

Presiding Judge: Witness E.N. Cherkasov, the interrogation is over, I suggest you take a seat in the courtroom, there may be additional questions for you. Secretary, invite witness K.E. Petrov.

Petrov K.E. (enters the hall): Hello.

Chairman: Come in, witness, introduce yourself.

Petrov K.E.: I am Petrov Konstantin Evgenievich, born on November 18, 1990, I live in Moscow, st. Perechnaya, 19.

Presiding Judge: I explain to you the rights and obligations (listed), as well as responsibility for giving false testimony and for refusing to give testimony. You do not have to testify against yourself or your close relatives. Tell me, witness, do you know the plaintiff or the defendant?

Petrov K.E.: No, these persons are not familiar to me.

Presiding: Do you know witness E.N. Cherkasov?

Petrov K.E.: No, I don’t know.

Presiding Judge: Witness E.N. Cherkasov, tell me, do you still insist that you knew K.E. Petrov?

Cherkasov E.N. (located in the hall): Yes, we studied with him in parallel groups at the institute.

Presiding Judge: Witness Petrov K.E., do you insist that you did not know each other?

Petrov K.E.: Sorry, I didn’t immediately remember the appearance of E.N. Cherkasov, indeed, I studied with him and know him.

Chairman: Tell us what you know about the case.

This is how, with the help of simultaneous interrogation of two persons, the court quickly eliminated the contradiction that arose as a result of the testimony. In this case, the method of “cross-examination” was used.

Minor witness

The specifics of summoning minors to court and interrogating minors to give evidence are stipulated in the relevant articles of the Civil Procedure Code and the Criminal Procedure Code.

In civil proceedings

Code of Civil Procedure of the Russian Federation. Article 179. Interrogation of a minor witness

1. The interrogation of a witness under the age of fourteen, and at the discretion of the court, the interrogation of a witness between the ages of fourteen and sixteen years, is carried out with the participation of a teaching worker who is summoned to court. If necessary, the parents, adoptive parents, guardian or trustee of the minor witness are also called. These persons may, with the permission of the presiding officer, ask the witness questions, as well as express their opinion regarding the identity of the witness and the content of the testimony given by him. 2. In exceptional cases, if it is necessary to establish the circumstances of the case, during the interrogation of a minor witness, one or another person participating in the case may be removed from the courtroom on the basis of a court ruling, or any of the citizens present may be removed in the courtroom. The person participating in the case, after returning to the courtroom, must be informed of the content of the testimony of the minor witness and must be given the opportunity to ask the witness questions. 3. A witness who has not reached the age of sixteen is removed from the courtroom at the end of his interrogation, unless the court finds it necessary for the presence of this witness in the courtroom.

In criminal proceedings

Code of Criminal Procedure of the Russian Federation. Article 280. Peculiarities of interrogation of a minor victim and witness

1. When participating in the interrogation of victims and witnesses under the age of fourteen years, and at the discretion of the court, at the age of fourteen to eighteen years, a teacher shall participate. The interrogation of minor victims and witnesses with physical or mental disabilities is carried out in all cases in the presence of a teacher. 2. Before the interrogation of the minor, the presiding officer explains to the teacher his rights, about which a corresponding entry is made in the minutes of the court session. 3. The teacher has the right, with the permission of the presiding officer, to ask questions to the minor victim or witness. 4. If necessary, their legal representatives are also called to participate in the interrogation of minor victims and witnesses specified in part one of this article, who can, with the permission of the presiding officer, ask questions to the interrogated person. The interrogation of a victim or witness under the age of fourteen is carried out with the mandatory participation of his legal representative. 5. Before interrogating victims and witnesses under the age of sixteen, the presiding officer explains to them the importance of complete and truthful testimony for a criminal case. These persons are not warned of liability for refusal to testify and for giving knowingly false testimony and their subscription is not taken. 6. In order to protect the rights of minors, at the request of the parties, as well as at the initiative of the court, the interrogation of victims and witnesses under the age of eighteen may be carried out in the absence of the defendant, about which the court issues a ruling or resolution. After the defendant returns to the courtroom, he must be given the testimony of these persons and given the opportunity to ask them questions. 7. At the end of the interrogation, the victim or witness who has not reached the age of eighteen years, the teacher who was present during his interrogation, as well as the legal representatives of the victim or witness may leave the courtroom with the permission of the presiding judge.

When the witness failed to appear

In many cases, judges are faced with the failure of summoned persons to appear in court. Here are some examples:

A summons was sent to the person, he received it, but does not want to appear. In this case, at the request of the parties, the court has the right to issue a decree on the delivery, which is transferred to a special department of the bailiff service that carries out forced delivery. The resolution specifies the date and time of the court hearing to which the witness must be brought.
If a subpoena has been sent, but there is no information about its receipt and the bailiffs have established that another person lives at the address indicated in it, the court has the right to request information about the person from the City Address Bureau, and then send the subpoena to a new address. The court does not have the right to put a person on the wanted list or instruct the police to establish the whereabouts of a witness.
When a person summoned to court is not hiding and wants to come according to the summons, but cannot do this due to physical conditions (for example, due to illness), the court may decide on a mobile court hearing.
If a witness changed his place of residence during the investigation and at the time of the trial lives in another region, the court has the right to decide to conduct video conferencing - video conferencing. The procedure is that a person appears in court in the city of his place of residence at the appointed time. At the same time, the court panel is assembled in the city where the case is being considered, the participants can see the witness on the screen, they can hear him, they can ask him questions, etc. Thus, with the help of technology, the “effect of presence” of a person in the courtroom is achieved.
In some cases, the witness may be “classified.” This means that his data (full name, place of residence, year of birth, etc.) is not disclosed to anyone and is available only to the judge. For security purposes, such a person is assigned a pseudonym at the investigation stage. Such persons are interrogated in court via audio link: in the courtroom, his testimony is heard over the audio system by all participants, but his voice is changed using electronic technology. During the interrogation, the witness is in a special room outside the court session; he also hears questions, explanations of rights and obligations, that is, the entire course of the proceedings.
The person does not appear in court for unknown reasons: the summons is returned and not actually served, the bailiffs have not established any information about the location, the request to the Address Bureau was unsuccessful. In such cases, the Code of Criminal Procedure of the Russian Federation allows the court (even if one of the parties disagrees) to read out the testimony of a witness given during the investigation, subject to certain conditions:
if the person summoned to court is a citizen of another state and refuses to appear for questioning;
the person’s failure to appear is due to a natural disaster or other emergency that makes it impossible to appear in court (for example, an earthquake, a major regional accident, etc.);
if it was not possible to establish the whereabouts of the person (all measures were taken: requests were sent to the AB, summonses were sent to all known addresses, and bailiffs were instructed to ensure appearance in court).

If both parties to criminal proceedings agree to the disclosure of the testimony of a witness that he gave during the investigation, the court may decide on the disclosure, regardless of the presence of one of the above grounds.

Who cannot be called as a witness

According to current legislation, not all citizens can be invited to testify as a witness.

In civil proceedings, the list of persons who cannot be witnesses is specified in the Code of Civil Procedure of the Russian Federation.

Code of Civil Procedure of the Russian Federation. Article 69. Testimony... 3. The following are not subject to questioning as witnesses: 1) representatives in a civil or administrative case, or defense attorneys in a criminal case, an administrative offense case, or mediators - about circumstances that became known to them in connection with the performance of their duties representative, defender or mediator; 2) judges, jurors or arbitration assessors - about the issues that arose in the deliberation room in connection with the discussion of the circumstances of the case when making a court decision or sentence; 3) clergy of religious organizations that have undergone state registration - about the circumstances that became known to them from confession; 4) arbitrator (arbitrator) - about the circumstances that became known to him during the arbitration (arbitration proceedings).

In criminal proceedings, the list of persons who cannot be called as witnesses is specified in the Code of Criminal Procedure of the Russian Federation.

Code of Criminal Procedure of the Russian Federation. Article 56. Witness... 3. The following are not subject to questioning as witnesses: 1) a judge, a juror - about the circumstances of the criminal case that became known to them in connection with their participation in the proceedings in this criminal case; 2) lawyer, defender of the suspect, accused - about the circumstances that became known to him in connection with the application to him for legal assistance or in connection with its provision, except for cases where the lawyer, defender of the suspect, accused applies for questioning as a witness with the consent of and in the interests of the suspect, accused; 3) a lawyer - about the circumstances that became known to him in connection with the provision of legal assistance, except for cases where the lawyer applies for questioning as a witness with the consent of the person to whom he provided legal assistance; 4) a clergyman - about the circumstances that became known to him from confession; 5) a member of the Federation Council, a deputy of the State Duma without their consent - about the circumstances that became known to them in connection with the exercise of their powers; 6) an official of the tax authority - about the circumstances that became known to him in connection with the information provided contained in a special declaration submitted in accordance with the federal law “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts of the Russian Federation” and (or) documents and (or) information attached thereto;

7) arbitrator (arbitrator) - about the circumstances that became known to him during the arbitration (arbitration proceedings).

All other persons may be called to participate in civil or criminal proceedings as witnesses.

How to draw up a petition to call witnesses in a civil case

In accordance with Article 35 of the Code of Civil Procedure of the Russian Federation, citizens who participate in the process of considering the case can submit petitions. This type of application does not have a strict form or form, but it must contain some data.

The first thing you need to write is the full name of the court and who is filing the petition.

Then, in the body of the application, the civil case number is indicated and the contents are briefly described; information about the plaintiff and defendant is provided.

Next, it is necessary to provide the details of all witnesses whom, in the opinion of the applicant, the court should question. It is also necessary to provide facts or circumstances that this witness can confirm. Add date and signature.

The full name of the witness and residential address must be indicated. In no case should the document be compiled with grammatical errors, inaccuracies, corrections or incorrect wording. This may result in the application being rejected.

Is it obligatory to give evidence?

The obligation to testify as a witness in civil proceedings is also stipulated in the Code of Civil Procedure of the Russian Federation.

Code of Civil Procedure of the Russian Federation. Article 70. Obligations and rights of a witness

1. A person called as a witness is obliged to appear in court at the appointed time and give truthful testimony. A witness may be questioned by the court at his place of residence if, due to illness, old age, disability or other valid reasons, he is unable to appear when summoned by the court. 2. For giving knowingly false testimony and for refusing to give testimony for reasons not provided for by federal law, the witness bears liability as provided for in the Criminal Code of the Russian Federation.

In this case, a person called to testify in a civil proceeding needs to know Art. 69 Code of Civil Procedure of the Russian Federation:

Witness's testimonies

… 4. The following persons have the right to refuse to testify: 1) a citizen against himself; 2) spouse against spouse, children, including adopted children, against parents, adoptive parents, parents, adoptive parents against children, including adopted children; 3) brothers, sisters against each other, grandfather, grandmother against grandchildren and grandchildren against grandfather, grandmother; 4) deputies of legislative bodies - in relation to information that became known to them in connection with the exercise of deputy powers; 5) The Commissioner for Human Rights in the Russian Federation - in relation to information that has become known to him in connection with the performance of his duties; 5.1) Commissioner for the Rights of the Child under the President of the Russian Federation, Commissioners for Children’s Rights in the constituent entities of the Russian Federation - in relation to information that has become known to them in connection with the performance of their duties; 6) Commissioner under the President of the Russian Federation for the protection of the rights of entrepreneurs, commissioners for the protection of the rights of entrepreneurs in the constituent entities of the Russian Federation - in relation to information that has become known to them in connection with the performance of their duties.

In these cases, the summoned person is obliged to appear in court when summoned, but when invited to testify as a witness, declare his refusal to testify, referring to the norm of the above article.

In criminal proceedings, testifying is also a duty.

Code of Criminal Procedure of the Russian Federation. Article 56. Witness... 6. A witness has no right: 1) to evade appearing when summoned by an inquiry officer, investigator or to court (as amended by Federal Law No. 87-FZ of 06/05/2007) (see the text in the previous edition), 2) give knowingly false testimony or refuse to give testimony.

And just as in civil proceedings, the Criminal Procedure Code provides a list of persons who have the right to refuse to testify.

Code of Criminal Procedure of the Russian Federation. Article 56. Witness

…

4. A witness has the right: 1) to refuse to testify against himself, his spouse and other close relatives, the circle of whom is determined by paragraph 4 of Article 5 of this Code. If a witness agrees to testify, he must be warned that his testimony may be used as evidence in a criminal case, including in the event of his subsequent refusal to testify.

The code refers to the concept of “close relatives”:

Code of Criminal Procedure of the Russian Federation. Article 5. Basic concepts used in this Code... 4) close relatives - spouse, parents, children, adoptive parents, adopted children, siblings, grandparents, grandchildren.

In these cases, the witness is also obliged to appear at the court hearing, but after being called to testify, refuse, citing the norm of the above article.

ECHR: the court is obliged to assist the defense in calling witnesses

On April 6, the European Court of Human Rights issued a ruling in the case “Olga Kudrina v. Russia,” in which it emphasized that if the defense cannot ensure the attendance of witnesses to participate in the trial due to objective reasons, the court is obliged to assist it in this.

Participation in protests

On August 2, 2004, the building of the Ministry of Health and Social Development of Russia was seized by members of the National Bolshevik Party, banned in Russia, during a protest against the monetization of benefits (the corresponding bill was developed by the ministry and was discussed in the State Duma at that time). Activists dressed in emergency uniforms stormed the building, occupied four offices under the pretext of conducting emergency drills, then hammered the doors from the inside with nail guns and further blocked them with office furniture. They threw leaflets from the windows and chanted slogans calling for the resignation of the then Minister of Health. The activists stayed in the ministry building for about an hour until law enforcement broke down the doors and detained them.

On December 20 of the same year, the Tverskoy District Court of Moscow found seven members of the NBP - participants in the protest action - guilty under Art. 213 and 167 of the Criminal Code of the Russian Federation, sentencing each to five years in prison. An appeal subsequently reduced the sentences.

On May 4, 2005, during another NBP protest, two activists, one of whom was Olga Kudrina, using climbing equipment, hung an 11-meter poster on the external wall of the Rossiya Hotel with an inscription addressed to the head of state, which the authorities considered offensive. They then began waving flares and throwing leaflets. Less than an hour later, the activists were detained.

On May 18, 2005, Olga Kudrina was charged under Art. 213 and part 2 of Art. 167 of the Criminal Code, and on May 31 - a similar charge in connection with the protest action on August 2, 2004. The reason was the testimony of one of the convicted participants in the protest action in the building of the Ministry of G., who claimed that the girl also participated in the event, as well as the police report dated 2 August 2004, according to which Kudrina was detained that day along with other protesters. According to the testimony of a law enforcement officer, the identities of the detainees were established on the basis of their passports.

The court refused to call the defense to question witnesses serving their sentences

At the court hearing, G. renounced the testimony he had previously given, saying that he signed it under pressure from an FSB officer, and in reality Olga Kudrina did not participate in the protest action at the ministry. The accused, in turn, argued that her passport was used by third parties, and the fact that she did not take part in the event could be confirmed by six activists detained that day and serving sentences in prison.

The defendant's defense lawyer, lawyer of the Moscow Region Administrative Office, director of the Moscow Bar Association "Liptser, Stavitskaya and Partners" Dmitry Agranovsky, petitioned to summon these witnesses for questioning at the court hearing. Referring to Art. 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, he emphasized that everyone has the right to call and examine witnesses on his behalf under the same conditions as witnesses against him.

The prosecutor's office objected to the motion, arguing that if the defense considers it necessary to question witnesses, it must ensure their appearance on their own initiative. The prosecutor added that the prosecution did not refuse to question these witnesses, but considered that sufficient evidence had already been presented to the court.

As a result, the court rejected the defense's motion, noting that ensuring the attendance of witnesses was not the responsibility of the prosecution. He indicated that the actions of the defendants caused significant damage to the ministry and permanently destabilized both its normal work and the normal functioning of the Rossiya Hotel on the eve of the celebration of the 60th anniversary of the Victory. As a result, the court found Olga Kudrina guilty and imposed a sentence of 3.5 years in prison.

The defense appealed the verdict, pointing out that the convict’s participation in the protest at the ministry was not proven, since none of the witnesses questioned in court confirmed that they saw her there, and G. refused the testimony he gave at the investigation stage. In such circumstances, the defense lawyer emphasized, it was important to question other eyewitnesses of the event, but the request to summon them for questioning in court was rejected. The lawyer also drew attention to the appeal that his client was convicted of participating in a peaceful protest against the abolition of social benefits. She did not disrespect the public and did not resort to violence or threaten them. The defense lawyer also considered the punishment imposed on the convict to be excessively severe. However, the Moscow City Court upheld the sentence and saw no grounds for mitigating the punishment.

Arguments of the complaint to the ECHR

In her complaint to the European Court, the applicant insisted that she did not take part in the protest at the ministry, and that her participation in the protest at the Rossiya Hotel was peaceful and in this way she wanted to express her opinion. Olga Kudrina also argued that the punishment imposed on her was not proportionate to the seriousness of the act and was intended to limit freedom of expression, which is a violation of Art. 10 of the Convention. The applicant indicated 500 thousand euros as fair compensation for moral damage. “We asked the ECHR to recognize that in relation to Olga Kudrina there were violations of Part 1 and paragraph “d” of Part 3 of Art. 6 and part 1 art. 10 of the Convention, and oblige the Russian Federation to take measures to eliminate the violations committed,” Dmitry Agranovsky explained to AG.

He added that the European Court sent a statement of facts on the complaint to the Government of the Russian Federation and posed a number of questions to it. In particular, did the applicant have the opportunity to call six defense witnesses to the court hearing on the same conditions as prosecution witnesses, as required by the provisions of part 1 and paragraph “d” of part 3 of Art. 6 of the Convention; on the basis of what evidence was the fact of Olga Kudrina’s participation in the action in the ministry established; What was the reason for rejecting the request to question defense witnesses?

The following questions concerned the compliance of the criminal prosecution with the provisions of Art. 10 and 11 of the Convention. In particular, was the protest in which the applicant was charged peaceful, having regard to all the circumstances, and was the punishment imposed on the applicant proportionate to the aim pursued by law?

The Government argued in their response that the question of whether it is advisable to call witnesses is for the court to decide. In addition, in his opinion, the applicant’s participation in the protest action on August 2, 2004 was confirmed both by witness testimony and by the fact that she was brought to administrative responsibility.

The Government added that the protests in which the applicant was accused of participating were not peaceful within the meaning of Art. 10 and 11 of the Convention. The protesters violently and illegally entered the building, disrupting public order, endangering the well-being of others, and damaging and destroying government and hotel property. Instead of expressing her opinion in one of the ways permitted by Russian law (for example, at a public meeting, meeting, demonstration, march or picket), the applicant acted in a manner constituting a criminal offence. The Government also emphasized that the applicant was prosecuted not for political views or demands, but for participation in mass riots associated with the destruction of state property, and therefore the punishment imposed on her was proportionate.

Conclusions of the ECtHR

Having considered the complaint, the European Court, with reference to its ruling in the case “Murtazalieva v. Russia”, recalled that the refusal to call a defense witness irreversibly undermined the fairness of the trial against the applicant. As stated in the judgment, the courts were required to establish whether the request to examine a witness was sufficiently motivated and relevant to the matter of the prosecution, whether the domestic courts considered the evidence relevant and provided sufficient justification for the decision not to examine the witnesses at trial, and whether the decision affected the fairness of the case. judicial trial.

The ECHR noted that the district court that heard the criminal case against the applicant had previously sentenced six activists to imprisonment. The details of this case could not have been unknown to the court, since it referred to its own decision of December 20, 2004 in the case against the applicant and accepted it as evidence. Consequently, the court should have known that Olga Kudrina could not on her own ensure the appearance of witnesses who were already in custody, but did not dwell on this issue in detail and did not present other reasons for refusing to call them.

In such circumstances, the Court considers, additional and relevant statements from all six eyewitnesses - or at least some of them - could have shed light on the events of 2 August 2004 and clarify the issue of the applicant's alleged participation in that action. Thus, the ECtHR concluded that the refusal of the national courts to call witnesses for questioning at the hearing undermines the overall fairness of the trial against the applicant, and found a violation of Art. 6 and 3 of the Convention.

With regard to Olga Kudrina's participation in the protest at the Rossiya Hotel, the European Court stated that her detention and subsequent sentencing to imprisonment constituted an interference with the right to freedom of expression. Moreover, in the Court’s opinion, the applicant’s detention initially pursued the legitimate aim of preventing disorder and protecting the rights of others, since, despite the importance of freedom of expression, Art. 10 of the Convention does not automatically create rights of access to private or public property.

Thus, the European Court concluded, since the daily activities of the Rossiya Hotel were disrupted as a result of the protest action, the law enforcement authorities, in order to restore and protect public order, had every reason to interfere with the applicant’s expression of his political views. The ECtHR also noted that the district court qualified the methods used by the applicant (throwing firecrackers into the street, installing climbing equipment in a hotel room in order to escape from a room on the 11th floor onto the external wall of the building, waving flares near flammable objects) as prohibited by law and causing damage to someone else's property. From this perspective, the prosecution and conviction of Olga Kudrina was intended to prevent such acts, regardless of the context in which they were committed.

However, the Court found that the imposed sentence of 3.5 years of imprisonment was excessive. With reference to the precedent ruling on this issue in the case of Taranenko v. Russia, the European Court indicated that the severe sanction applied in the Kudrina case was undoubtedly intended to have a deterrent effect on the applicant and other participants in the protests. The court concluded that the applicant's sentence was disproportionate to the legitimate aim of protecting public order. Thus, he admitted a violation of Art. 10 of the Convention and awarded the applicant compensation for non-pecuniary damage in the amount of EUR 9,800.

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How to behave in court

When called to testify, you need to understand how to behave during questioning as a witness in the courtroom.

The correct course of action would be to follow these simple rules:

1. The most reasonable decision would be to prepare in advance for giving evidence together with a lawyer or advocate, since the lawyer already has a rough idea of what questions may be asked during the questioning of a witness and how best to answer them.

2. Give truthful testimony. The fact is that the lawyers involved in the process (judge, lawyer, prosecutor, lawyers representing the plaintiff and defendant), as a rule, are not new to determining the truth of witness testimony. Through a system of correctly asked questions, they can identify inconsistencies in testimony, which can become the basis for accusing the witness of knowingly giving false testimony. And for this offense there is criminal liability.

3. Briefly and exclusively to the point, report the information known about the case. Do not make any conclusions or assumptions. The court is not interested in them at all, and representatives of the opposing party may begin to interpret them in their own interests.

4. Answer questions as briefly as possible. After all, any carelessly spoken word can result in the most unpleasant consequences in a lawsuit.

5. Remember that the witness has the right to use any manual notes during testimony. However, it is necessary to first show these records to the court.

6. Questions at a court hearing can be asked by all parties (judge, prosecutor, lawyer, lawyers - representatives of the parties, the parties themselves). It is the witness's responsibility to answer these questions. An exception is the requirement to testify against yourself or your loved ones.

7. If during the course of testimony a witness has forgotten some points, the court has the right to show the witness any documents or records in order to refresh his memory.

8. Testimony will look more convincing if the witness does not interrupt the chain of events.

9. You cannot ask questions to the court.

10. Since the witness is not a lawyer, in order to protect the witness from unlawful questions from the court or the parties to the case, it is better for him to enter into an agreement with a lawyer or lawyer who will come with him to court and will monitor the legality of the questions.

11. If a witness participates in a criminal trial, and during the trial his answers differ from the testimony he gave during the investigation, the judge will consider those given during the investigation to be true testimony.

12. In the magistrate’s court, the address “dear court” is accepted; in the district and higher courts, it is customary to address the judge with the words “your honor.”

At the end of the interrogation, at the discretion of the court, the interrogated witness may either remain in the courtroom or leave.

Who can be a witness in a civil case?

Testimony is an oral report by a witness about the facts known to him, which help to objectively make a decision in a given case. The testimony is recorded by the secretary in the minutes of the meeting.

According to Article 69 of the Code of Civil Procedure of the Russian Federation, any citizen who, for one reason or another, became aware of the circumstances of the case, can act as a witness. He undertakes to inform the court of all information known to him.

The following cannot act as witnesses:

priests (according to information received at confession);
court employees, jurors (according to information that became known during meetings on the case);
defense representatives, mediators (for certain circumstances related to specific cases).

Witnesses may not testify against themselves or close relatives.

You shouldn't call a large number of people. Usually, one witness per specific circumstance that is of significant importance to the case is sufficient. But for reinsurance and better clarification, you can imagine two or three citizens.

It is worth considering that if a witness cannot come to the courtroom for good reasons (serious illness, old age, disability), then he is questioned by law enforcement officials at his place of residence.