Is challenging testimony a new duty of the accused?

According to paragraphs 2-5 Part 2 of Article 281 of the Criminal Procedure Code of the Russian Federation, if a victim or witness fails to appear at a court hearing, the court has the right, at the request of a party or on its own initiative, to make a decision on the disclosure of their previously given testimony and on the reproduction of video or filming of investigative actions performed with their participation, if, as a result of the measures taken, to establish the location of the victim or it was not possible to summon a witness to the court session. At the same time, by virtue of Part 2.1 of Article 281 of the Code of Criminal Procedure of the Russian Federation, the court does not have the right to announce without the consent of the parties the testimony of the failed victim or witness, to reproduce at the court session the materials of video recordings or filming of investigative actions carried out with their participation, as well as to refer to this evidence in the verdict, if the defendant was not given the opportunity in the previous stages of the proceedings in the case to challenge the testimony of these persons in the ways prescribed by law (for example, during confrontations with the defendant to ask questions to the victim or witness, with whose testimony the defendant does not agree, and to express their objections to them, as explained in paragraph 4 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 29.11.2016 No. 55 "On the court verdict").

The above provision fully complies with international standards of fair trial and directly follows from paragraph "e" of paragraph 3 of Article 14 of the Covenant on Civil and Political Rights, according to which everyone accused of committing a criminal offense has the right to interrogate witnesses testifying against him or the right to have these witnesses questioned, and also has the right to summon and interrogate witnesses in his favor on the same conditions as for witnesses testifying against him. As noted in the literature, Part 2.1 of Article 281 of the Code of Criminal Procedure of the Russian Federation is aimed "at achieving a reasonable balance between the parties to the defense and the prosecution in court proceedings" ^[1].

The Constitutional Court of the Russian Federation in its decisions indicates that in the event that the court announces - if there are grounds specified in the law - the testimony of an absent person incriminating the accused and their subsequent use to substantiate the verdict, the parties should be given the opportunity to defend their interests in court by all means provided for by law, including challenging the read testimony and petitions for their verification with the help of other evidence, as well as by using other means that contribute to the prevention, detection and elimination of errors in making judicial decisions (rulings of the Constitutional Court of the Russian Federation No. 233-O of 27.10.2000, No. 291-O of 21.12.2000, No. 326-O of 14.10.2004, No. 548-O of 07.12.2006, dated 20.03.2008, No. 188-O-O, dated 16.04.2009, No. 440-O-O, dated 23.12.2014, No. 2951-O, dated 29.09.2016, No. 1792-O, dated 28.03.2017, No. 529-O, etc.).

In general, such a position of the Constitutional Court of the Russian Federation can be positively assessed, since it is aimed at protecting the defendant and ensuring the exercise of his rights. However, it is necessary to note two points in it. Firstly, the Constitutional Court of the Russian Federation speaks about the possibility of the defendant defending his interests in court by all means provided for by law, which contradicts the provisions of paragraph 11 of Part 4 of Article 46 and paragraph 21 of Part 4 of Article 47 of the Criminal Procedure Code of the Russian Federation. In accordance with these norms, the suspect, the accused (hereinafter – the defendant) has the right to defend himself by any means and methods not prohibited by the Code of Criminal Procedure of the Russian Federation (which is a broader concept in terms of content). Secondly, the Constitutional Court of the Russian Federation indicates only those ways of challenging the testimony of an undeclared victim or witness that must be provided to the defendant at a court hearing when the testimony is read out. But all these methods relate to the testimony already given without the participation of the defendant and his defense lawyer, which is not at all equivalent to challenging the testimony of the interrogated person during his interrogation. It turns out that in this situation, the defendant can no longer use all the methods of his defense that are not prohibited by law, but is content only with what is available to him at the court session (and not always the most effective).      

It follows from a number of other decisions of the Constitutional Court of the Russian Federation that the disclosure of testimony given by victims or witnesses who did not appear in court during the preliminary investigation is allowed only in exceptional cases provided for by law, if a proper assessment of the reliability of these testimony as evidence is provided, and the accused had the opportunity to ask questions to the person showing or challenge the reliability of his testimony at the stage of pre-trial proceedings or in previous judicial stages of criminal proceedings. At the same time, the prosecution is obliged to take exhaustive measures to ensure the participation of a witness or victim who did not appear at the court session (see, for example, the Ruling of the Constitutional Court of the Russian Federation No. 2252-O dated 10.10.2017 "On the complaint of citizen Khasenov Ibrahim Nasrudinovich for violation of his constitutional rights by Part two.1 of Article 281 of the Criminal Procedure Code of the Russian Federation").

Such a position should be recognized as more consistent with the basic provisions of the Criminal Procedure Code of the Russian Federation on the right to protection and, accordingly, more correct. It emphasizes the need to provide the accused with the opportunity to interrogate (ask questions) the witness or victim showing against him (without excluding other ways of challenging testimony), and without limiting the accused to a certain stage of criminal proceedings. In addition, the exclusivity of such a measure as the announcement of testimony and the obligation of the prosecution to ensure the appearance of witnesses and victims at the court session for adversarial interrogation is noted.    

The publications have already raised the question of what should be understood by the defendant's ability to challenge the testimony of the person testifying against him in the ways provided for by law. Does this mean that the prosecution, that is, the investigator, the inquirer, is obliged to conduct a confrontation at the stage of the preliminary investigation, even if the defense does not apply for it, so that the accused and his defender have the opportunity to ask questions to witnesses and victims? Or should we agree with the position of the Constitutional Court of the Russian Federation, expressed in numerous definitions, according to which the exercise by the party of the protection of its rights concerning the verification and refutation of testimony, significant, in its opinion, for the resolution of the criminal case, involves an active form of behavior and inaction of the accused (defendant) or his defender regarding the exercise of these rights cannot be regarded as a failure to provide him with the opportunity to challenge the relevant testimony in the ways prescribed by law (see, for example, the Ruling of the Constitutional Court of the Russian Federation No. 2273-O of 27.09.2019, the Ruling of the Constitutional Court of the Russian Federation No. 2252-O of 10.10.2017, No. 2827-O of 19.12.2017, No. 196-O of 25.01.2018, No. 799 of 27.03.2018-O and No. 802-O, etc.) ^[2]?

It is obvious that it is impossible to agree with the above legal position of the Constitutional Court of the Russian Federation, since it follows not from giving the defense party the opportunity (right) to challenge the testimony of victims and witnesses from the prosecution, but about imposing such a duty on it. The Constitutional Court of the Russian Federation says that if the defense refuses an active form of behavior (at a certain stage of the process does not declare petitions, does not give arguments, etc.), then the negative consequences of such defense tactics (in the form of uncontested testimony of persons showing against the defendant) come precisely for her. This position of the court contradicts Part 2 of Article 14 of the Criminal Procedure Code of the Russian Federation, according to which the suspect or the accused is not obliged to prove his innocence and the burden of proving the accusation and refuting the arguments given in defense of the suspect or the accused lies with the prosecution. This does not correspond to the above provisions on the right of the defense party to defend itself by any means and methods not prohibited by the Code of Criminal Procedure of the Russian Federation. The defense side is forced to defend itself actively, in certain ways and at a certain stage of the process, they are forced to disclose defense tactics in advance (before the judicial investigation), impose on it the duty of refuting the testimony of victims and prosecution witnesses, as well as the consequences of failure to fulfill this duty. 

In judicial practice, two opposite approaches have been formed on this issue.

A number of decisions of courts of general jurisdiction contain the position that if the defense party did not file a petition for a confrontation at the stage of preliminary investigation and in the future there was a need to announce testimony under paragraph 5 of Part 2 of Article 281 of the Criminal Procedure Code of the Russian Federation, then the testimony can (and should) be announced at a court hearing. Thus, in one of the decisions it was stated that at the end of the preliminary investigation, having familiarized himself with the materials of the criminal case, including the protocol of the interrogation of witness O., the accused did not exercise his right to challenge these testimonies, in particular, by applying for a confrontation with this witness. At the same time, it was taken into account that the testimony of witness O. was not the key evidence on which the court's conclusions about guilt were based, but was examined by the court in conjunction with other evidence in the case, after evaluating which the court made the right decision, ruling a lawful and reasonable sentence (The Ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 05.08.2021 No. 59-UD21-5).

A similar approach was used by the Judicial Board for Military Personnel of the Supreme Court of the Russian Federation in the cassation ruling of 24.09.2020 in case No. 222-UD20-18-A6. The court considered that the conditions for examining the testimony of witness E., provided for in Part 2.1 of Article 281 of the Code of Criminal Procedure of the Russian Federation, were met, since at the stage of pre-trial proceedings Arapbaev was given the opportunity, after familiarizing himself with the protocols of witness E.'s interrogation with the participation of defender Andreev, to formulate questions to the named witness, to petition for a confrontation with her, to state in writing their position on the reliability of the testimony of this witness or in any other way provided by law to challenge this evidence. At the court session, Arapbayev and his defender exercised the right to bring to the attention of the court their position regarding the evidentiary value of the examined testimony of witness E., they did not petition for the witness to be called back to the court session, the judicial investigation was completed with the consent of the parties. Thus, the defense side was given the opportunity to exercise its right to challenge the testimony of witnesses whose testimony was announced at the hearing, and the defense side used this right to the extent that it considered necessary for itself.

However, such an approach, in its essence, "obliging" the defense party to file a petition for a confrontation in case of disagreement with the testimony of a witness, is obviously incorrect for the following reasons. 

Firstly, asking questions through an investigator will allow the defense side to ask only a part of the questions, since investigators often remove questions (as is now happening during a confrontation), although the defense side believes that they can help in the implementation of its function. In addition, the need to raise many questions arises already during the interrogation, depending on the answers of the interrogated or his reactions to the questions posed, however, during the interrogation by the investigator, the defense side will be deprived of the opportunity to observe the interrogated and correct their questions ^[2]. It should also be noted that the assignment to the defense of the obligation to raise questions to witnesses and victims at the stage of preliminary investigation reveals to the investigator, the investigator the tactics of defense, those aspects (incompleteness, inconsistency, etc.) of testimony that can help the accused in the implementation of his defense. This will allow the prosecution to strengthen its position in advance, eliminate the identified gaps and shortcomings and put the defense side (so the most vulnerable in criminal proceedings) at an even greater disadvantage in relation to the prosecution. That is why it is impossible to agree with the opinion that "an alternative to confrontation is to provide the defense side with the opportunity to interrogate witnesses and victims through an investigator and an inquirer. At the same time, the defense party has the right to formulate questions to the person in its request for additional interrogation of this person" ^[3].

Secondly, the remark that "there will be no confrontation when the suspect, the accused does not testify, using the constitutional right not to testify against himself, is justified. He is silent, does not say anything, so in this situation there are no contradictions in the testimony" ^[4]. By obliging the defense to take active action at the stage of preliminary investigation, the courts distort the meaning of Article 51 of the Constitution of the Russian Federation, as well as the provisions on the distribution of the burden of proof in a criminal case.

In judicial practice, there is a position according to which there are other ways, besides confrontation, to challenge testimony (which are available to the defense and should be used by it). So, for example, one of the decisions of the Supreme Court of the Russian Federation states: the arguments of the defender that the announcement of the testimony of the witness contradicts the requirements of Part 2.1 of Article 281 of the Criminal Procedure Code of the Russian Federation are untenable, since at the pre-trial stage the defense had the opportunity to challenge his testimony in all ways not prohibited by law. Confrontation, contrary to the opinion of the lawyer, is not the only way. Although, as follows from the verdict, the defense party filed a petition for a confrontation, which was denied to her (Cassation ruling of the Judicial Board for Military Personnel of the Supreme Court of the Russian Federation dated 10.11.2022 No. 222-UD22-54-A6).

However, the Criminal Procedure Code of the Russian Federation does not provide for other ways of directly posing questions to the interrogated person. And what other ways, besides a confrontation, can allow the accused to ask questions at the stage of the preliminary investigation to the witness testifying against him, remains unclear.

In addition, the above approaches do not seem to be entirely correct because, in accordance with Part 1 of Article 240 of the Code of Criminal Procedure of the Russian Federation in court proceedings, all evidence in a criminal case is subject to direct investigation, with the exception of cases provided for in Section X of the Code of Criminal Procedure of the Russian Federation. The court hears the testimony of the defendant, the victim, witnesses, the expert opinion, examines the material evidence, announces protocols and other documents, performs other judicial actions on the examination of evidence. The disclosure of testimony given during the preliminary investigation is allowed only in cases provided for in Articles 276 and 281 of the Code of Criminal Procedure of the Russian Federation (Part 2 of Article 240 of the Code of Criminal Procedure of the Russian Federation). At the same time, it is the immediacy that ensures a complete and objective examination of the evidence and becomes the key to making a fair judicial decision, which is based on the personal perception by the court of all the evidence presented by the parties. The direct interaction of the court with the interrogated person in the court session allows the court not only to listen to the testimony given by the interrogated person, but also to observe him, his behavior, his reactions to the questions of the parties and the court itself. Such observation can become the basis for the formulation of new, additional, clarifying questions that will allow to correctly assess the reliability of the testimony of the victim or witness, to establish all the circumstances relevant to the resolution of the criminal case ^[2]. "Depriving a defendant of the right to interrogate a participant showing against him is depriving him of the opportunity to demonstrate to the court the inconsistency of the testimony given by the victim or witness, which can become key evidence that forms the basis of the court's conviction against the defendant" ^[2].

The second approach, which can be identified by studying judicial practice, is the opposite of the first and consists in the fact that the courts take into account the non-confrontation between the accused and the victim, the witness at the stage of preliminary investigation as a circumstance preventing the disclosure of testimony. It is this approach that seems to be the most correct.

So, in one of the cases, having taken at the request of the state prosecutor, contrary to the opinion of the defendant and her defender, who insisted on the need to interrogate witnesses at a court hearing, due to the presence of a number of questions to them, the decision to announce their testimony on the basis of paragraph 5 of Part 2 of Article 281 of the Criminal Procedure Code of the Russian Federation, due to the impossibility of their appearance in court the court did not take into account that in the previous stages of the proceedings the defendant, who did not agree with the testimony of these persons, was not given the opportunity to challenge these testimony in the ways provided by law (including during face-to-face (with witnesses, ask them questions, express their objections). As a result, the verdict in the case was overturned (Cassation ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 03.03.2022 No. 37-UD22-1-K1).

However, it should be noted that when applying this approach, the courts take into account the position of the defense regarding the disclosure of testimony, the evidentiary value of the witness's testimony, whether the defendant or his defense attorney declares a motion to re-summon the witness or the victim to the court session, about the possibility of ending the judicial investigation (Cassation ruling of the Judicial Board for Military Personnel of the Supreme Court of the Russian Federation dated 03/15/2022 G. No. 222-UD22-6-A6).

On the one hand, in accordance with Part 1 of Article 192 of the CPC, conducting a confrontation is a right, not an obligation of the investigator. Moreover, at present, the Code of Criminal Procedure of the Russian Federation provides only one basis for its conduct – the presence of significant contradictions in the testimony of previously interrogated persons. But at the same time, it is the prosecution's side that is obliged to create all the necessary prerequisites for the subsequent use of the prosecution's evidence in court. On the other hand, the defense party at the time of the confrontation before the end of the preliminary investigation is not familiar with the case materials and cannot fully interrogate the witness, because it does not have all the information on the case. And it can be quite difficult to interrogate a prosecution witness under the supervision of an investigator who represents the same party without an independent and objective court (investigators remove dangerous questions, help witnesses with answers, etc.).  

To resolve this situation, some authors propose to introduce "a new kind of interrogation - the interrogation of the victim, the witness with the participation of the person he incriminates," where the goal is to respect the right of the accused to interrogate witnesses against him, so that in the future, in case of non-appearance of these persons in the court session, the court could announce and examine their testimony in the manner prescribed the law, and together with other evidence to make a final decision on the criminal case under consideration ^[5]. However, it remains completely unclear how such an interrogation will differ from a confrontation (except for the reasons for its conduct) and how its conduct will help solve all the problems that arise (and those mentioned above).

There is also a proposal to exclude from Part 1 of Article 192 of the Criminal Procedure Code of the Russian Federation the existing basis for conducting a confrontation (the presence of significant contradictions between the testimony of previously interrogated persons), as well as to include a new basis: the victim or witness giving evidence incriminating the suspect (accused) of committing a crime ^[6]. But unfortunately, the proposed changes will not solve the existing problems, since the interrogation of witnesses against the accused will still take place at the preliminary investigation under the supervision of the investigator. In addition, the wording of the "incriminating" testimony of the accused will generate subjectivity in its application, since the assessment of what incriminates the accused and what does not remain at the discretion of the investigator (i.e., the participant of the opposite party).   

Thus, it is necessary to agree with the opinion that although the inclusion of Part 2.1. in Article 281 of the Code of Criminal Procedure of the Russian Federation was due to good intentions, it did not solve all the issues arising in the administration of justice in criminal cases related to the possibility of the court examining the evidence presented by the parties ^[7]. Moreover, it has generated new ones, the solution of which is very important and relevant at the present time.