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Art. 308 of the Criminal Code: Refusal of a witness or victim to testify

The testimony of victims and witnesses is considered the most reliable evidence. Even in the ancient Russian judgments, participants in the process were mentioned, such as the obituary - the one who heard about the event from sources deserving respect, and the species - the person who saw the incident. The legislator is interested in obtaining evidence, since it is on them that a system of evidence is built. Modern norms of law establish the duty of appearance of a witness / victim for interrogation.

What is a testimony?

Under them it is necessary to understand information that a citizen informs in the course of interrogation. The conversation with him is conducted in the framework of pre-trial proceedings. A witness may be questioned about any circumstances that are of value to the process. Among the data may be data on the identity of other participants in production, the relationship of the citizen with them.

Explanations

The testimony of the witness / victim is expressed in the form of verbal communications from citizens who are not involved in the proceedings as accused / suspects. It contains information about circumstances and facts that are of evidentiary value, perceived from the words of other entities or personally. Interrogation is carried out in accordance with the rules of the articles of the Criminal Procedure Code.

Features of the presentation

As a source of evidence, a witness / victim's message is given verbally. This form provides a direct perception of outgoing information, reduces the likelihood of distortion of information. A citizen has the right to put down the data in his own hand, but after their oral statement. Information that is contained in various complaints, explanations, statements is not considered indications. This information can be used as the basis for calling a subject for interrogation.

Procedural position

As a direct source of information, a citizen who has not been brought to justice in a criminal case. This circumstance determines the legal status of the person. The procedural status of a citizen in the framework of production is oriented to obtaining truthful information from him. The law defines the duties and rights of victims and witnesses, which are a guarantee of the inadmissibility of distortion of transmitted information.

A responsibility

The legislation provides for a number of articles, according to which a witness / victim may be punished for false information or refusal to provide information. This art. 307, 308 of the Criminal Code of the Russian Federation. In addition, there is a responsibility for false denunciation. It is established art. 306 of the Criminal Code. These norms are aimed at observing the procedural order in the course of obtaining evidence. A citizen involved in interrogation as a witness or a victim is warned of responsibility under Art. . 306-308 of the Criminal Code of the Russian Federation . Any subject who knows anything about the circumstances of the incident can be summoned to the conversation.

Art. 308 of the Criminal Code

The refusal of victims / witnesses to testify, the evasion of victims from the examination, the production of expertise in relation to him in cases where their consent is not required, or the provision of handwriting samples / other materials for the performance of a comparative study is prosecuted. The verdict of Art. может предусматривать: 308 of the Criminal Code may provide for:

  1. A fine of up to 40 thousand rubles. Or a charge equal to the salary / income for 3 months.
  2. Up to 360 hours of compulsory work.
  3. Up to three months. Arrest.
  4. Up to one year is corrected. Works.

Normally an exception is established when a citizen is not held accountable. In particular, Art. не распространяется на отказ субъекта свидетельствовать против своих близких или супруга/супруги, себя. 308 of the Criminal Code does not apply to the refusal of the subject to testify against his relatives or spouse, himself. This exception is established pursuant to Art. 51 of the Constitution.

Art. 308 of the Criminal Code of the Russian Federation with comments

The public danger of a crime, the responsibility for which is established in the norm, consists in the fact that the commission of this act does not allow or significantly complicates the adoption of a procedural decision that takes into account the actual circumstances of the case. Accordingly, it is difficult to ensure the protection of the interests and rights of citizens, organizations, the state and society.

Forms of manifestation

Objectively, the crime provided for in Art. , может проявляться в бездействии. 308 of the Criminal Code , may manifest itself in inaction. However, in some cases, it may be preceded by the active action of a citizen. In particular, it may be the formulation of an application in which a citizen refuses to give evidence. The act established by Art. , может также выражаться неявкой субъекта на допрос по вызову дознавателя, суда, следователя. 308 of the Criminal Code of the Russian Federation , may also be expressed by a person's non-appearance for interrogation on the summons of the inquirer, the court, or the investigator. A citizen commits a crime, refusing both to give the testimony as a whole in the case, and to provide any specific information on a particular circumstance, while referring to the fact that he does not remember or does not know any information. If the subject conceals information about certain facts during the interrogation, these actions are not classified according to art. а в соответствии с нормой, предусматривающей ответственность за предоставление заведомо ложных данных. 308 of the Criminal Code of the Russian Federation, and in accordance with the norm providing for responsibility for the provision of knowingly false data.

Specificity

The crime is formal. The deed is considered completed at the time of the refusal. If a subject who previously evaded giving evidence subsequently changes his decision and provides information known to him, he is discharged of responsibility under the rule in question. This is allowed in accordance with the provisions of Art. 75 of the Code. The norm provides for the removal of responsibility from the person, in connection with active repentance.

The subjective part

The guilt of a subject who refuses to provide information known to him is expressed in the form of direct intent. The citizen understands that being summoned for interrogation, he is obliged to visit him and give truthful testimony. However, a person does not want to do this, and violates the law. The motive may be the desire to avoid assistance to law enforcement agencies and the court. A citizen may refuse to testify, wanting to help the guilty to escape responsibility, fearing revenge on the part of the subject, to whom the information provided to him may be disadvantageous for other reasons.

Nuance

In accordance with the general rule, the motives, like the purposes of the crime, do not have a determining influence on the qualification of the deed. But if, in the presence of a real threat to the victim or witness, the authorized bodies do not take measures to ensure safety, there may be a need for refusal. Accordingly, the citizen's inaction will be considered admissible in conditions of extreme necessity.

Exceptions

In accordance with the provisions of Part 1 of Article 51 of the Constitution, it is not permitted to compel a citizen to testify against relatives, himself or her husband / wife. The circle of relatives in respect of whom this rule operates is determined by clause 4 of Article 5 of the Criminal Procedure Code. The note to the norm excludes the responsibility for these citizens for refusing to give evidence. In addition, the law provides for the obligation to preserve professional secrecy by subjects that practice law practice. Art. 308 of the Criminal Code does not apply to defenders who refuse to provide information that has become known to them in the process of citizens applying to them for legal aid or in the course of its direct rendering. Responsibility is also exempted from clerics who are obliged to keep the confession secret, jurors, judges, State Duma deputies, members of the Federation Council, officials vested with representative and diplomatic immunity, who must ensure the confidentiality of the information they receive in connection with the exercise of their powers.

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