The institute of criminal law, providing for the participation of witnesses, is not as young as it seems. The first mention of it is found in the Cathedral Code (1649). And the provision on the participation of at least two people as witnesses was first legislatively drawn up in 1864. Criminal procedural law currently pays quite a lot of attention to this institution, regulating it in two articles (60, 70 of the Code of Criminal Procedure of the Russian Federation).
Who are the witnesses?
The rights and obligations of the witness are clearly regulated by the current legislation (criminal procedure), there they are given a definition. Based on Article 60 of the Code of Criminal Procedure of the Russian Federation, under the terms should be understood persons who are not interested in the outcome of the criminal case. They are involved by the investigator or interrogator in participating in legal proceedings in order to certify any fact, content, course and results obtained after the investigation.
What category of citizens can participate in this?
Any citizen of the Russian Federation can act as a witness, with the exception of:
- persons under the age of majority;
- citizens who participate in the criminal process, as well as their relatives;
- representatives of the executive branch, who, in accordance with federal law, are authorized to conduct operational investigative or criminal procedure activities in the field of preliminary investigation.
Rights and obligations of the witness
The execution of certain regulatory actions is always twofold. By acquiring rights, we also get responsibilities. No exception - the activities of witnesses. According to the third part of Article 60 of the Code of Criminal Procedure, they have a legal right to:
- participation in the investigative action;
- making comments, statements; it is important to remember that all of them are subject to entry into the protocol without fail;
- familiarization with the contents of the protocol of the investigative action in which the witness took part;
- receiving compensation for expenses to the witnesses that he incurred in connection with the performance of the duties entrusted, including for the loss of time, compensation for lost wages;
- filing a complaint about decisions or actions (inaction) on the part of the investigator, interrogating officer, prosecutor, who unlawfully restrict his rights.
The rights and obligations of the witness, as has already been said, are inseparable from each other. Therefore, in agreeing to participate in production in this status, a citizen must always remember certain requirements that will be imposed on him. Firstly, the witness is obliged to appear to them at the call of state bodies and individual officials who carry out criminal proceedings. In the opposite case, if there is a refusal without good reason, a person can be fined 2.5 thousand rubles (according to 117 articles Code of Criminal Procedure). Secondly, persons acting as witnesses are required to not disclose and not disseminate data obtained by the preliminary investigation, if he was warned about this in advance in the manner prescribed by law. Criminal liability under article 310 of the Criminal Code of the Russian Federation is possible for the dissemination of information.
When is the participation of witnesses necessary?
The participation of witnesses is inextricably linked with two legislative provisions in the criminal process. First, there must be at least two people. And the second is the participation and presence of witnesses in the following criminal cases during the investigation:
- when property is seized (115 articles of the Code of Criminal Procedure);
- any inspection (scene, crime, corpse, etc.);
- during an investigative experiment;
- when such investigative actions as a search, including personal search, seizure take place;
- upon examination and subsequent listening to the phonogram of the recording of telephone or any other conversations;
- during the on-site verification procedure;
- when inspecting, seizing and making copies of postal and telegraphic items;
- upon presentation for identification.
Understood in Administrative Law
The institute of witnesses entered the administrative process a little later, compared with the criminal. Nevertheless, he found legislative consolidation. So, witnesses (Administrative Code of the Russian Federation) can be invited in certain cases, which are provided for by the specified code, at the invitation of the official who is in charge of the case for an administrative offense. Their number must be at least two. A record is made of their participation in the protocol. The rights and obligations of the witness in the administrative process are similar to those in the criminal.
In practice, it is especially common to encounter violations in this area on the road. Traffic police officers make a number of mistakes, which, in particular, can serve as the basis for the annulment of a court decision. One of these, the most elementary, is the participation of one witness. Or, for example, in the column where all the data about them is indicated, indicate fictitious or incorrect names and surnames, addresses. Further, when considering the case by the court, a person writes a petition asking them to call witnesses, but letters do not reach them, and they do not give evidence. The words of the police officer are accepted only as true. Therefore, lawyers recommend to everyone, in case of an administrative violation, which requires the presence of witnesses, the following:
1. Demand acquaintance with witnesses, make sure that these are the individuals for whom they impersonate. Feel free to ask for a passport at least.
2. Demand the full participation of witnesses, from the moment a document of a procedural nature is drawn up to its signing, including presence during a procedural action.
3. If the presence of witnesses was necessary, but the procedural document was drawn up without them, always leave your comments and comments. Write everything that does not suit you, and only then put the signature. Otherwise, in court your claims will be unfounded.
Can I refuse to participate as a witness?
Absolutely everyone should remember that neither the criminal procedure law, nor other legislative acts regulates the procedure for attracting a citizen by the police as a witness. Therefore, liability for refusal is not provided. This is an exclusive right, not an obligation. Therefore, you may well refuse to be understood without explaining any reasons. And even more so no one has the right to impose or threaten this with any measures.
