Право/ 5. Уголовное право и криминология

C.e.s. Spektor L.A.

South – Russian state university of economics and service, Russia, Shakhty

The refusal of witness or victim from giving evidence.

Public danger of refusal to give evidence consists in the fact that this crime in most cases embarrasses and excludes bringing guilty to account.

During the period from 2002 to 2006 thereafter 843, 945, 898, 1488, 2230 persons, who committed crimes, stipulated in article 308 of Criminal Code(CC) of Russian Federation(RF), were discovered.

The main direct object of regarded crime are public relations, providing normal functioning of judicial power during performance of justice, connected with getting of reliable information about investigated crime. Legal interest and rights will be regarded as an additional object in case of bringing harm to legal rights and interests of citizens and legal entities because of refusal to give evidence.

At the same time other opinions are expressed in literature. L. V. Lobanova determines public relations, providing getting of evidence from witness or victim, as an object of regarded crime.

We consider that criminality of this offence is defined not only by getting of evidence, but also by creating of embarrassments against performing of justice, which appear because of refusal of witness or victim from giving evidence.

A. V. Fedorov suppose public relations, providing the normal functioning of court during the protection of personality from illegal and baseless conviction, to be a united object for deliberately false evidence (ar. 307 of CC) and refusal to give evidence. He sees the difference between them in the method of influence upon object. Thus, it’s difficult to agree with him, because these crimes differ not only by the method of influence upon object, but also by public relations being encroached on. Because of false information the examination of evidence in court can take the way, far from truth, in result justice won’t be performed and the accused will be sentenced or the guilty will be released from responsibility. The refusal from giving evidence can’t have such influence.

S. V. Milyukov supposes normal performance of justice to be the object of refusal from giving evidence.

The objective side of the action is characterized bu refusal from giving evidence in court. According to ar. 78 and 79 of Criminal Procedural Code (CPC) and to ar. 69 of Civic Procedural Code the evidence of witnesses and victims have a very important meaning for resolution of criminal and civic cases. The refusal of victim or witness to give evidence represents their open unwillingness to give certain information. It can be expressed both in written and oral form. At the same time the guilty can refuse to give evidence completely or in certain extent.

The refusal of witness or victim to give evidence can be both direct and concealed. The direct refusal is characterized by public statement that a person won’t give evidence, and the concealed one – by referring to various, even fictitious circumstances.

Thus, the regarded crime is committed by inactivity, i.e. the guilty doesn’t fulfill his procedural duty to impart to court the well-known circumstances on indicated criminal or civic case. At the same time holding back by witness or victim the well-known facts also forms the refusal to give evidence.

Some authors suppose that the refusal to give evidence is expressed in unwillingness to give evidence. And we do not agree with them.

Before giving evidence the witness or victim are warned about criminal responsibility for refusal to give evidence, which is expressed in ar. 164 of CPC. That’s why we can’t agree with position of some authors that the absence of such warning doesn’t exclude the criminal responsibility. Such meaning is conformed to requirements of ar. 164 of CPC.

Other authors claim that the refusal to give evidence can be made by evasion by witness or victim to appear in court for giving evidence. Evasion can be characterized both by non-appearance in court and leaving the room of trial. In case of evasion from appearance in court the person can be delivered to court forcedly according to ar. 111-113, 117 of CPC of RF. Other measures of procedural compulsion named in part 2 of ar. 111 of CPC: obligation to appear (ar. 112), bringing to court (ar. 113), money penalty (ar. 117) – can be applied for those who evade from appearance in court, and this excludes their criminal responsibility. Some authors express an opinion the criminal responsibility for refusal from giving evidence at all, they motivate it by the fact that in our country the system of measures providing the safety of witnesses and other subjects of the process haven’t been created yet. Making a person to fulfill his criminal procedural responsibilities, connected with appearance of danger for him, government in its face must strengthen the legal measures for providing his safety. If the state is not capable to provide such conditions then its requirements for a person to fulfill criminal procedural duties become illegal.

We agree with such statements, because practice shows that very often witnesses and victim are exposed to threats, coercion, bribery, blackmail and the fear of revenge of criminals, their accomplices, relatives, acquaintances and friends force them to refuse from giving evidence. The witnesses and victims motivated their refusal to give evidence by:

- the fear of revenge of criminals, their accomplices, friends and relatives – 38,3%

- threatening to them – 27,6%

- blackmailing of them – 2,2%

- bribery – 11,8%

- unwillingness to reappear in court and bodies of preliminary investigation many times, which is connected with distracting them from work or with negative relation of boss – 10,0%

- unwillingness and absence of money for paying their way to law machineries for giving evidence – 5,6%

But we suppose that decriminalization of this crime on the base of these arguments will be incorrect. Such resolution of the question will influence negatively on performance of justice, because certain group of guilty people will be able to avoid criminal responsibility and punishment.