Constitution of the Russian Federation, 51 articles. No one is obliged to testify against himself, his spouse and close relatives

The right to silence in the law of the Russian Federation

Most people, having legal knowledge at the everyday level, understand the meaning of Art. 51 of the Constitution of the Russian Federation based on films produced in the USA. The phrase “you can remain silent; everything you say can be used..." is familiar to many. In foreign law, this provision is called the “Miranda rule” and implies that any information obtained from detainees before they are (orally) explained the procedural rights cannot be used in court as evidence. Therefore, they try to clarify them immediately.

But in Russia, the “Miranda rule” does not apply, and people who do not answer any questions from law enforcement officials often act to their detriment. They have the right not to report information that will harm them personally or their loved ones, but they cannot remain completely silent.

Prohibition of self-incrimination

The privilege against self-incrimination is an important component of Art. 51 of the Constitution of the Russian Federation. It is separately prescribed in the main codes - the Code of Criminal Procedure, the Arbitration Procedure Code, the Code of Administrative Offenses and the Code of Civil Procedure of the Russian Federation.

It is worth noting that the prerequisites for witness immunity appeared in England in the 12th century, when those suspected of heresy were forced to take oaths ex officio. In the modern world, this rule is the most important principle of justice. It receives special attention in the USA, Australia, Germany, Canada and the European Union. But the procedural implementation of the privilege against self-incrimination varies depending on the system adopted in the state.

1. In countries of common (case) law, if the suspect agrees to testify, then he is questioned as a witness. Accordingly, he may be held accountable for subsequent refusal to testify or reporting knowingly false information.

2. In the countries of the continental system (including the Russian Federation), a suspect or accused who refuses to testify or gives false information is not held accountable. He is believed to be acting within the framework of the defense against self-incrimination.

The right to refuse testimony is not only related to the story of a specific offense. A person may not provide any information about himself, which may subsequently be used as evidence in criminal proceedings.

What evidence can you avoid giving against yourself, your spouse and close relatives?

To correctly understand your rights, you need to know what kind of testimony you can not give - this is testimony against yourself, your spouse or close relatives.

During the interrogation, the investigator (interrogating officer) and the court are obliged to explain all rights. But, as a rule, everything is limited to just listing them. Unfortunately, if you signed the protocol under the explanation of Art. 51 of the Constitution of the Russian Federation, this will mean that everything is clear to you. In this case, agreeing to testify may lead to a worsening of your position or the position of the person about whom the testimony is given. On the other hand, an unjustified refusal to testify may lead to criminal liability.

Testimony against yourself, a spouse or close relatives is testimony about any circumstances that directly or indirectly concern you and other specified persons. But, as a rule, we are talking about communicating information that could harm a person in some way. For example, create preconditions for suspicion of a crime or other offense, or even worse - become a reason for bringing charges and justifying them. Such evidence must be treated with the utmost care.

Fortunately, Russian criminal law practice is such that the rights provided for in Art. 51 of the Constitution of the Russian Federation are interpreted quite broadly - as the right to silence. But you need to understand that this right still has limitations.

Testimony against spouses and relatives

The list of persons against whom you can refuse to testify is given in paragraph 4 of Art. 5 Code of Criminal Procedure of the Russian Federation. It includes:

Spouses are persons with whom the marriage is registered in the civil registry office.
Parents or adoptive parents.
Children, including adopted children.
Relatives, including half- and half-brothers, brothers and sisters.
Grandchildren.
Grandparents.

The list is closed and applies to all types of production - a similar list is given in other codes of the Russian Federation. The big omission is that it does not include stepfathers, stepmothers, and cohabitants (common-law spouses). In criminal proceedings, witnesses have the right to use clause 3 of Art. 5 of the Code of Criminal Procedure of the Russian Federation on the concept of “close people” (persons who are related, or persons whose well-being is dear to the witness due to personal attachment). Formally, the law indicated by the Constitution of the Russian Federation, Article 51, can also be applied to them.

Persons who can take advantage of witness immunity according to the Code of Criminal Procedure of the Russian Federation

The Code of Criminal Procedure of the Russian Federation in the relevant articles directly indicates those persons who have the right or obligation to refuse to testify. In addition, the limits of witness immunity are established:

the circle of persons in respect of whom there is a right or obligation not to testify;
a range of circumstances (issues) regarding which a person has the right or obligation not to testify.

Yes, in addition to the right to witness immunity, in some cases there is a duty to refuse to testify. Therefore, situations of witness immunity are conditionally divided into two corresponding groups. The consequences of testifying in each of these two cases are completely different.

The following have the right to refuse to testify due to the presence of a certain procedural status:

Witnesses.
Victims.
Civil plaintiffs and defendants.
Suspects, accused, defendants.
Representatives of the above persons.

These persons may not testify in relation to themselves, their spouse and close relatives.

The following have the right to refuse to testify due to their professional status:

Persons who have diplomatic immunity - until they obtain consent to interrogation from the foreign state in whose service the person is (was) or the international organization of which the person is (was) a member.
Senators of the Federation Council and deputies of the State Duma of the Russian Federation - only in part of the circumstances that became known to them in connection with the exercise of their powers.

Cannot be questioned (must refuse to testify):

Jurors and judges - only in part of the circumstances of the criminal case that became known to them in connection with their participation in the proceedings in this case.
The arbitrator - only in part of the circumstances that became known to him within the framework of the arbitration proceedings (arbitration).
Lawyers and defenders of a suspect (accused) in a criminal case - only in part of the circumstances that became known to them in connection with the requested or provided legal assistance. The obligation does not apply if the lawyer (defender) himself requests the interrogation, the interrogation has been agreed upon with the client and it will be in his interests.
Priests - only in part of the circumstances that became known to them from confession.
Officials of the Federal Tax Service of the Russian Federation - only in part of the circumstances that became known to them in connection with the information provided in the special declaration under the law on “capital amnesty” (N 140-FZ of 06/08/2015).

The above persons cannot be questioned as witnesses and only for those circumstances to which immunity applies. If they are summoned for questioning, they must refuse to testify in this part, but in other circumstances they are required to testify. At the same time, these persons are also subject to the right provided for in Part 1 of Art. 51 of the Constitution of the Russian Federation. That is, they may not testify against themselves, their spouse and close relatives on a general basis.

In addition to the above, there are restrictions on the interrogation of sick people who, by forensic examination, are recognized as incapable, due to their mental or physical condition, of correctly understanding the circumstances of a criminal case and testifying on them. There is no direct prohibition on interrogation of such persons in the Code of Criminal Procedure of the Russian Federation, but their testimony will not be valid and must be recognized as inadmissible evidence. These persons, personally or through their representatives, have the right to refuse to testify without the occurrence of legal consequences of such refusal.

Guarantees against coercion

The use of actions (threats, blackmail) to force one to testify is a criminal offense under Art. 302 of the Criminal Code of the Russian Federation. It is assumed that any information about the circumstances of a dispute or crime must be given voluntarily, with full understanding of the consequences of what is said. This principle is not formally stated anywhere, but the European Convention implies it at the heart of the very concept of fair justice.

In Russia, it is precisely with guarantees against coercion that the practice of clarifying Art. 51 of the Constitution of the Russian Federation before drawing up all procedural documents within the framework of criminal proceedings and trials.

The Constitution of the Russian Federation (Article 51, the interpretation of which provides for the right to absolute protection from self-incrimination) formally makes it impossible to confess. After all, in essence this is a violation of witness immunity.

For such cases, the Supreme Court of the Russian Federation indicated that the admission of guilt by the accused or suspect is not testimony and does not require the participation of a lawyer. In practice, the investigative authorities, before drawing up the appropriate protocol on confessing something, explain to the person (against signature) the provisions of Art. 51 of the Constitution of the Russian Federation.

Article not to incriminate oneself, comments

Every suspect has the right to silence

The concept of not incriminating oneself is generally recognized norms and principles of international law; it is a kind of protection against pressure from government officials on the accused. The investigation cannot resort to evidence obtained through coercion against the will of the accused during the investigation.

Opinion of the European Convention, European Court

This right is consistent with the European Convention in terms of the presumption of innocence. The European Court explains that the accused may not speak out against a person or provide information that is used by the prosecution.

This permission is relevant after the repressions suffered, when the necessary testimony was extracted through torture, blackmail, and threats. Mass executions, denunciations - this is the time of Stalinist reprisals, fabricated cases.

Article 51 of the Constitution of the Russian Federation

This Constitution of the Russian Federation provides for an expanded version of the right not to testify against oneself. A person under investigation may not disclose information directed against people who are related to them. This is husband, wife, children, parents, grandparents. And also against adoptive parents, adopted children, blood brothers, sisters, grandchildren.

A person suspected of anything has the right to refuse testimony. From evidence, facts that are directed against him or his relatives. Act as a witness in a case against relatives.

The suspect must be informed by the investigator about the right not to give incriminating evidence. If this does not happen, the information obtained during the interrogation is considered unacceptable. A suspect has the right to demand the presence of a lawyer during interrogations. Listen to consultations, because he does not know what information will turn against him.

How to correctly apply Art. 51 of the Constitution of the Russian Federation, the video will tell you:

Limitations of witness immunity

It is very important to understand the possible applications of this standard. Article 51 of the Constitution of the Russian Federation is limited to several prohibitions provided for by the current law and law enforcement practice.

The suspect (accused, witnesses) is obliged to take part in investigative activities that require his activity (confrontation, examination, identification).
Obtaining, including forced, samples of blood, urine, exhaled air, and voice samples from participants in the process for further use in evidence. The need for these actions is confirmed by the Constitutional Court of the Russian Federation.
It is possible to interrogate other people about the circumstances and situations that have become known to them from the person who has taken advantage of witness immunity, for the subsequent use of the received information in the evidence base.
The law of the Russian Federation (Article 1.5 of the Code of Administrative Offenses of the Russian Federation) establishes exceptions to the presumption of innocence. In some cases, a person is obliged to prove his innocence. In European Union countries, this rule applies to car owners who are required to prove their innocence of violating traffic rules.

Article 25.6. Witness

Resolution of the Supreme Court of the Russian Federation dated 02/14/2019 N 57-AD19-1 The resolution of the Chairman of the Belgorod Regional Court dated 08/29/2018 rightfully noted that the explanations of witness S. were received in compliance with the requirements of the law when they were received: his rights and obligations were previously explained to him , provided for in Article 25.6 of the Code of the Russian Federation on Administrative Offences, Article 51 of the Constitution of the Russian Federation, he was warned of administrative liability for giving knowingly false testimony under Article 17.9 of the said Code (case sheets 30 - 31).

Determination of the Constitutional Court of the Russian Federation dated June 25, 2019 N 1571-O

Therefore, it cannot be considered as violating the constitutional rights of A.V. Lyubimov, in particular, part 5 of Article 25.6 of the Code of Administrative Offenses of the Russian Federation, which provides for the need to warn the witness about administrative liability for giving knowingly false testimony. Since a person brought to administrative responsibility has the right to familiarize himself with all the materials of the case at any stage of the proceedings, and the main procedural acts drawn up during the proceedings must be served on this person (Part 1 of Article 25.1, Article 28.2 and Chapter 27 of the Code of Administrative Offenses of the Russian Federation), then also cannot be considered as violating the constitutional rights of the applicant, parts 2 and 3 of article 28.2 and part 2 of article 29.7 of the Code of Administrative Offenses of the Russian Federation due to the fact that they do not provide for the mandatory delivery of copies of all case materials to the specified person and allow consideration of the case on the basis of materials, copies which were not provided to the person in respect of whom the proceedings are being carried out.

Resolution of the Supreme Court of the Russian Federation dated July 4, 2019 N 34-AD19-1

There are no grounds for a critical assessment of the testimony of witness B., who confirmed that she is the owner of the above-mentioned car, used by a person unknown to her as a taxi, which her grandson S.S., who does not have a driver’s license, does not drive (case sheets 145 - 146) , since the evidence was obtained in compliance with the procedural requirements established by Article 25.6 of the Code of the Russian Federation on Administrative Offenses, it is consistent with other materials of the case, in particular, the vehicle registration card (case sheet 70), information on the issuance of a driver’s license (case sheet 75, revolution).

Resolution of the Supreme Court of the Russian Federation dated July 17, 2019 N 46-AD19-11

According to Part 1 of Article 25.6 of the Code of Administrative Offenses of the Russian Federation, a person who may be aware of the circumstances of the case to be established may be called as a witness in a case of an administrative offense. This article does not contain any restrictions on the circle of these persons related to their official duties. Thus, the testimony of traffic police officers cannot be considered inadmissible in connection with the performance of their official duties.

Resolution of the Supreme Court of the Russian Federation dated 08.08.2019 N 33-AD19-5

By virtue of parts 1, 2, 6 of Article 25.6 of the Code of the Russian Federation on Administrative Offences, a person who may be aware of the circumstances of the case to be established may be called as a witness in a case of an administrative offense. The witness is obliged to appear when summoned by the judge, body, or official who is prosecuting the case of an administrative offense, and to give truthful testimony: to report everything known to him about the case, to answer the questions posed and to certify with his signature in the appropriate protocol that his testimony was recorded correctly. For refusal or evasion of the duties provided for in Part 2 of this article, the witness bears administrative liability provided for by the said Code (in accordance with Article 17.7 of the Code of the Russian Federation on Administrative Offenses).

Ruling of the Supreme Court of the Russian Federation dated July 4, 2017 N 308-KG17-7686 in case N A32-27153/2016

If necessary, a witness may be questioned as a witness in accordance with Article 25.6 of the Code of Administrative Offenses of the Russian Federation. If video recording is used to record the performance of procedural actions, with the exception of a personal search, these procedural actions are carried out in the absence of witnesses, which is recorded in the appropriate protocol or the certificate of examination for alcohol intoxication. Materials obtained during procedural actions using video recordings are attached to the corresponding protocol or the certificate of examination for alcohol intoxication.

Determination of the Constitutional Court of the Russian Federation dated July 18, 2017 N 1761-O

1. In his complaint to the Constitutional Court of the Russian Federation, citizen V.N. Starovoitov challenges the constitutionality of clause 1 of part 3 of article 25.6 of the Code of Administrative Offenses of the Russian Federation, according to which a witness has the right not to testify against himself, his spouse and close relatives.

Determination of the Constitutional Court of the Russian Federation dated September 28, 2017 N 1815-O

Article 25.7 of the Code of Administrative Offenses of the Russian Federation, contested by the applicant, establishing the procedural status of a witness in proceedings in a case of an administrative offense, presupposes the possibility of attracting as witnesses only those persons who are able to objectively certify the fact of the proceedings, the progress and results of procedural actions. The presence or absence of this ability, as well as interest in the outcome of the case, is established in the process of collecting, checking and evaluating the body of evidence. Article 25.6 of the Code of Administrative Offenses of the Russian Federation regulates the legal status of a witness and provides that a person who may be aware of the circumstances of the case to be established may be called as such.

Resolution of the Supreme Court of the Russian Federation dated January 28, 2020 N 5-AD20-2

A violation entailing the impossibility of using evidence may be recognized, in particular, by obtaining explanations from a victim, a witness, a person against whom proceedings are being conducted for an administrative offense, who were not previously explained their rights and obligations, provided for in Part 1 of Article 25.1, Part 2 of Article 25.2, Part 3 of Article 25.6 of the Code of the Russian Federation on Administrative Offences.

Determination of the Constitutional Court of the Russian Federation dated February 28, 2017 N 241-O

The contested articles 25.6 and 25.7 of the Code of Administrative Offenses of the Russian Federation establish the procedural status of a witness and attesting witness in proceedings in a case of an administrative offense; Article 28.2 of the Code of Administrative Offenses of the Russian Federation establishes the procedure for drawing up and serving a protocol on an administrative offense, which is a procedural document recording factual data relevant to correct resolution of an administrative offense case.

Resolution of the Supreme Court of the Russian Federation dated June 11, 2020 N 5-AD20-64

Right to refuse assistance

Article 51 of the Constitution of the Russian Federation, comments to which are used in law enforcement practice, also implies actions other than refusal to testify. In particular, its content includes the right not to assist in the criminal prosecution process. It includes:

Refusal to provide any explanation or information.
Confession (admission of guilt). If a suspect refuses to confess to a crime during the first interrogation, no one has the right to insist on this during subsequent interrogations.
Failure to hand over things, documents or valuables for investigative actions.

The right of the defendant not to testify against himself

Speaking about the rights of participants in criminal proceedings, one cannot fail to note, perhaps, one of the fundamental rights, which is enshrined in Part 1 of Article 51 of the Constitution of the Russian Federation.

Namely, “no one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law.”

At the same time, in accordance with the provisions of Part 3 of Article 56 of the Constitution of the Russian Federation, this right is not subject to limitation.

However, the whole question is whether the provisions of parts 1 and 2 of Art. 273 of the Code of Criminal Procedure of the Russian Federation, according to which “the judicial investigation begins with the presentation of the charge brought against the defendant by the state prosecutor, and in criminal cases of private prosecution - with the presentation of the statement by the private prosecutor.

The presiding judge asks the defendant whether he understands the charge, whether he pleads guilty, and whether he or his defense attorney wishes to express his attitude to the charge.”

Thus, we see that in fact Art. 273 of the Code of Criminal Procedure of the Russian Federation imposes on the defendant the obligation to testify regarding the charge brought against him, namely, to plead guilty or not, but does not contain provisions obliging the court to find out from the defendant whether he wishes to testify by admitting or not admitting guilt in the charge brought against him , as well as explain to him the right to refuse to testify against himself by admitting or not admitting guilt.

How does the application of Art. 273 of the Code of Criminal Procedure of the Russian Federation when courts consider criminal cases.

Let me give you one example.

“After the state prosecutor presented the charges against him to defendant N., the presiding judge asked the defendant whether he pleads guilty to the crime.

Defendant N. did not fully admit his guilt in the charge.

Only after these explanations from the defendant, the presiding officer explained to him the right to refuse to testify, provided for in Article 51 of the Constitution of the Russian Federation, the right to refuse to testify against oneself.

Defendant N. wished to testify at the end of the trial.”

In my opinion, in this case a situation arises in which the defendant, in principle, cannot answer the presiding officer’s question, other than to admit or not plead guilty, and does not imply the possibility of not speaking out on this matter (that is, not testifying), in contrast , for example, from the possibility of not expressing one’s attitude towards the accusation.

Therefore, the following question arises:

— do not the provisions of Art. 273 of the Code of Criminal Procedure of the Russian Federation, Part 1 of Article 51 of the Constitution of the Russian Federation in the part in which they impose on the defendant the obligation to testify regarding the charge brought against him, namely, to plead guilty or not, while they do not contain provisions obliging the court to find out from the defendant, wants whether he should testify by admitting or not admitting guilt in the charge brought against him, and also explain to him the right to refuse to testify against himself by admitting or not admitting guilt.

It also seems that the provisions of Art. 273 of the Code of Criminal Procedure of the Russian Federation violate the constitutional right of the accused (defendant) “not to testify against himself” and “to defend his rights and freedoms” by refusing to express his opinion regarding the admission or non-admission of his guilt in the charge brought against him.

PS: This article is not legal advice.

Witness liability

In criminal proceedings, witnesses are invariably warned of the consequences of testifying, as well as the responsibility for lying and misleading the investigation or court.

Perjury as a crime against justice was known back in Ancient Rome. Modern law of the Russian Federation implies the reporting of knowingly false information about facts and circumstances that are known to a witness (expert, specialist) and may affect the results of the investigation or the court decision. Responsibility for it is provided for in Art. 307 of the Criminal Code of the Russian Federation.

The practice of criminal investigation shows that most often cohabitants (common-law spouses), friends, neighbors and acquaintances of victims and accused persons perjure themselves. The reason for their actions is mostly sympathy for possible criminals or their relatives, distrust of the police, but attempts to “settle scores” are also common.

As part of the crime under Art. 307 of the Criminal Code of the Russian Federation, several situations are possible:

1. Conscious delusion, when a witness incorrectly perceives any fact that affects the results of the investigation.

2. Using lies as a means of defense against suspicion. It is common for witnesses to retract information or even their own testimony in order to avoid being charged with a crime. But here, too, Article 51 of the Constitution of the Russian Federation can be applied. Exempt use cases:

The witness claims that he did not buy drugs from the accused, because in this case he actually admits to a crime under Art. 228 of the Criminal Code of the Russian Federation. His deliberate lie does not entail liability, since he protects himself from slander.
The witness provides false information because he believes that otherwise he himself will become a suspect in the crime.

If a person tries to avoid confessing to a criminal offense by lying, then liability under Art. 307 of the Criminal Code of the Russian Federation does not apply to him, because the Constitution of the Russian Federation (Article 51) protects against self-incrimination. But the situation is completely different if they perjure themselves for the sake of public opinion. People often try to appear more conscientious, law-abiding, or considerate than they actually are.

3. A deliberately false denunciation (report of a crime) is often used to divert suspicion. Responsibility for this crime is provided for in Art. 306 of the Criminal Code of the Russian Federation.

The quality and results of justice directly depend on people fulfilling their civic duty. However, the warning about liability for perjury is still perceived by many as an empty formality. Therefore, the level of crimes under Art. 306-307 of the Criminal Code of the Russian Federation remains high.

Other types of witness immunity

The Constitution of the Russian Federation (Article 51, Part 2) provides for cases of exemption from testifying, depending on the status of the witness and the circumstances that he must explain. This list includes:

Judges or jurors - about the facts that became known to them as part of the consideration of a specific criminal case.
Lawyers and defenders - information that became known to them in the process of providing legal services. Valid for criminal and civil proceedings.
Clergy (Christianity, Buddhism, Islam) cannot disclose information received from parishioners during the confession process. At the same time, representatives of sects and creeds do not have the right to use this type of immunity.
Deputies of representative bodies at the federal and regional levels have the right to refuse to testify about circumstances that became known to them during the exercise of their powers.
Diplomats (all those endowed with this status, including technical workers) - about any circumstances and facts. But immunity ceases to apply if consent to interrogation is obtained from a foreign state.

There are certain gaps in this list. For example, legal assistants, translators and representatives of citizens who are not their relatives do not have immunity. All of them can be questioned without the right of refusal.

The Constitution of the Russian Federation, Article 51 is a very important norm for domestic legislation and a country that has experienced a time of mass repression. She is a guarantor of respect for human and civil rights during communication with law enforcement and judicial authorities.

Article not to testify against oneself, other cases of exemption from testifying

“Extorting” a confession is an illegal act.

Article 51 of the Constitution of the Russian Federation gives the suspect a choice to decide whether to testify, without pressure and violence from the authorities.

List of persons not subject to criminal penalties if they refuse to testify

The law defines a group of persons who do not face criminal liability for non-disclosure of information about themselves. This is written in detail in Article 56, Part 3 of the Code of Criminal Procedure of the Russian Federation. The following categories of citizens who may not answer questions:

Servants of the law (judge, jury) - based on the materials they studied during the consideration of the criminal case.
Defender of the suspect - based on the facts of the case available due to professional duties.
Priest - events and information known during secret confession.
People's Deputy and Member of the Federation Council - the contents of the case materials known by virtue of their powers.
Tax authority employee – the material side of the matter from the submitted declaration.
Arbitration judge – case materials that were made public during the arbitration proceedings.
The doctor’s secret about the suspect’s health condition and the fact of his seeking medical help.
Representative for Human Rights in the Russian Federation - crime events known by the nature of his activities.