On the questioning of the lawyer as a witness

Markova Tatiana PhD in Law Associate Professor of the Department of Criminal Procedure Law of the Moscow State Law University named after O.E. Kutafin (MSUA) 125993, Russia, Moscow, Sadovaya Kudrinskaya str., 9 markovat@bk.ru Other publications by this author

The Code of Criminal Procedure of the Russian Federation provides for such a participant in criminal proceedings as a witness. In accordance with Part 1 of Article 56 of the Code of Criminal Procedure, a witness is a person who may be aware of any circumstances relevant to the investigation and resolution of a criminal case, and who is called to testify, except in cases provided for by the Code of Criminal Procedure (Part 1 of Article 56 of the Code of Criminal Procedure). A witness who appears on call may be questioned about any circumstances related to the criminal case, including the identity of the accused, the victim and their relationship with them and other witnesses (Part 2 of Article 79 of the Criminal Procedure Code of the Russian Federation). A witness may testify about events that he personally observed or that he became aware of from third parties (in this case, if possible, he is obliged to indicate the source of his awareness).

A witness in criminal proceedings is considered, first of all, as a source of information that is necessary for an investigator, an inquirer or a court for the proper investigation and resolution of a criminal case. Therefore, the main duty of any witness is his appearance at the call of the person conducting the proceedings in the case to testify. A witness is criminally liable for refusing to testify in accordance with Article 308 of the Criminal Code of the Russian Federation.

From the point of view of the current criminal procedure law, a witness can be (practically) any person, regardless of race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations, as well as other circumstances. Witnesses in a criminal case can even be young children (including those under the age of 7), as well as persons with physical or mental disabilities. There are no legal prohibitions on the interrogation of persons who are under the influence of alcohol or drugs, on outpatient or inpatient treatment. It is allowed to interrogate as witnesses representatives of various professions, including those performing duties to save the lives of other people, as well as relatives, relatives, friends and acquaintances of the accused, suspect, victim, civil plaintiff and civil defendant.

This is due to the fact that a witness is always a unique participant in criminal proceedings. It is generated by the circumstances of the criminal case and cannot be replaced by someone else. Preference is always given to the procedural function of the witness. This means that if any participant in criminal proceedings (judge, prosecutor, investigator, inquirer, defender, representative of the victim, civil plaintiff or civil defendant) is a witness in a criminal case, then he can no longer perform another function and is subject to recusal (Articles 61, 72 of the Code of Criminal Procedure of the Russian Federation).

The above, however, does not indicate that absolutely any person can become a witness in a criminal case. The Code of Criminal Procedure of the Russian Federation provides for two categories of subjects who either have the right or are obliged to refuse to testify in a certain situation. These include persons who have witness immunity and persons against whom a legislative ban on their interrogation as witnesses has been established. Representatives of the first category are exempt from the obligation to testify in connection with the presence of kinship and family relations with participants in the process (for example, the accused), and representatives of the second - in connection with the implementation of certain (professional) activities, which include advocacy.

Currently, the problem of questioning lawyers as witnesses is very relevant, especially those lawyers who perform the functions of defenders of suspects and accused in criminal proceedings. This is due to the fact that cases of interrogation of lawyers have become more frequent. And lawyers are not always called for questioning on the grounds that are established by the current legislation. This state of affairs greatly complicates the work of lawyers. Therefore, it is necessary to deal with this problem as quickly as possible.    

With regard to a lawyer, the current legislation prohibits his summoning and questioning as a witness about the circumstances that became known to him in connection with applying to him for legal assistance or in connection with its provision (Part 2 of Article 8 of the Federal Law of 31.05.2002 No. 63-FZ "On Advocacy and Advocacy in the Russian Federation"; paragraphs 2 and 3 of Part 3 of Article 56 of the Code of Criminal Procedure of the Russian Federation). This norm corresponds to the provisions of Clause 5, Part 4, Article 6 of the Federal Law of 31.05.2002 No. 63-FZ "On Advocacy and advocacy in the Russian Federation", according to which a lawyer is not entitled to disclose information provided to him by the principal in connection with the provision of legal assistance to the latter, without the consent of the principal. The legislative prohibition differs from witness immunity in that it does not imply the personal discretion of the lawyer, his choice (to give or not to give evidence). A lawyer, as a person who is not subject to interrogation, cannot even be called as a witness to testify, and in the event of a call (if this does happen), the lawyer must indicate to the investigator, the inquirer or the court his status and refuse to testify. According to Kolokolov N.A., the ban on questioning a lawyer as a witness is a presumption, the hacking of which is already a crime, because it is an encroachment on constitutional principles, such as the adversarial process and the right to defense ^[1]. It is difficult to disagree with the opinion expressed.

The norm contained in Part 2 of Article 8 of the Federal Law of 31.05.2002 No. 63-FZ "On advocacy and advocacy in the Russian Federation" and in paragraphs 2 and 3 of Part 3 of Article 56 of the Code of Criminal Procedure of the Russian Federation is aimed at protecting the confidentiality of information entrusted to the client lawyer in the performance of his professional functions. The legislator did not pursue any other goals other than creating conditions for the accused to receive qualified legal assistance and ensuring attorney-client privilege. The release of the defender from the obligation to testify about the circumstances that have become known to him or entrusted to him in connection with his professional activity serves to ensure the interests of the accused and is a guarantee of unhindered performance by the defender of the functions assigned to him; this is the meaning and purpose of the said norm. This understanding of lawyer immunity follows from the legal position of the Constitutional Court of the Russian Federation, formulated in the Ruling of 06.07.2000 No. 128-O on the complaint of citizen V.V. Parshutkin for violation of his constitutional rights, paragraph 1, Part 2 of Article 72 of the Code of Criminal Procedure of the RSFSR and Articles 15 and 16 of the Regulations on the RSFSR Bar.

The prohibition to interrogate a lawyer applies only to circumstances that have become known to him in connection with applying to him for legal assistance or in connection with its provision. A lawyer has no right to disclose information provided to him when defending suspects and accused persons, as well as when providing any other legal assistance (for example, when preparing an appeal in the interests of the victim). At the same time, the criminal procedure legislation does not establish any exceptions to this rule, depending on the time when the lawyer receives information constituting attorney-client privilege, does not limit them to information obtained only after the lawyer was allowed to participate in the case as a defender of the suspect, the accused. The legislative prohibition of questioning a lawyer as a witness ensures the confidentiality of all information received by a lawyer in the course of his professional activity within the framework of relations with the principal to provide him with qualified legal assistance, regardless of the time and circumstances of its receipt.

However, such guarantees apply only to those relations of suspects, accused with their lawyers that do not go beyond the provision of proper professional legal assistance in accordance with the procedure established by law, i.e. are not associated with violations of a criminally unlawful nature either on the part of the lawyer or on the part of his principal (in particular, outside of that criminal case according to which the principal as a suspect, the accused receives legal assistance from a lawyer), nor from a third party (Ruling of the Constitutional Court of the Russian Federation dated 11.04.2019 No. 863-O "On the complaint of citizens Zubkov Vladimir Vladimirovich and Krupochkin Oleg Vladimirovich on violation of their constitutional rights by the provisions of Articles 38, 88, 113, 125 and Part one Article 152 of the Criminal Procedure Code of the Russian Federation, as well as part 2 of Article 7 of the Federal Law "On the Investigative Committee of the Russian Federation"). In this regard, the regime of attorney-client privilege is not applicable to materials that may indicate the presence of signs of a crime in the relationship between a lawyer and his principal (or in connection with these relations), including crimes against justice, to the instruments and objects of the crime, otherwise the lawful nature of the actions of the lawyer and his principal would be questioned (The decision of the Constitutional Court of the Russian Federation dated 10.11.2016 "On approval of the review of the practice of the Constitutional Court of the Russian Federation for the second and third quarters of 2016").

It should be noted that the legislative prohibition on questioning a lawyer as a witness is understood and applied in judicial practice quite unambiguously. The courts of first instance refuse to interrogate lawyers as witnesses, which is recognized as lawful and justified by the courts of higher instances. Thus, in the Appeal Ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation dated 02.05.2017 No. 58-APU17-7, the following is noted: "The request of the defense party to interrogate the lawyer Baturina T.T. was reasonably refused on the basis of paragraphs 2, 3, part 3 of Article 56 of the Code of Criminal Procedure of the Russian Federation. At the same time, as correctly established by the court of first instance, the circumstances known to the lawyer Baturina T.T., which would not be related to the provision of legal assistance to Ivensky A.Yu. and which could be recognized as important circumstances affecting the final decision on the case, were not declared by the defense." In another decision, the Supreme Court of the Russian Federation declared illegal the substantiation of the conclusion about the defendant's guilt by the testimony of a witness - lawyer who provided legal assistance to the defendant when considering the case against him, referring to the fact that according to paragraph 3, Part 3 of Article 56 of the Code of Criminal Procedure, a lawyer is not subject to interrogation as a witness about the circumstances that became known to him in connection with providing legal assistance (Ruling of the Supreme Court of the Russian Federation dated 22.02.2007 in case No. 67-O06-92). Finally, canceling a private decision of the court of first instance against a lawyer, the Presidium of the Supreme Court of the Russian Federation pointed out a violation of paragraphs 2 and 3 of Part 3 of Article 56 of the Criminal Procedure Code of the Russian Federation during the interrogation of a lawyer, since all the circumstances about which the lawyer was interrogated became known to him in connection with the provision of legal assistance to his principal during his interrogations as a suspect, and then as an accused. In this regard, the arguments of the supervisory complaint that the testimony of a lawyer questioned as a witness in a private court order, contrary to the established prohibition, by virtue of Article 75 of the Code of Criminal Procedure of the Russian Federation are inadmissible evidence, were recognized based on the requirements of the Criminal Procedure Law (Resolution of the Presidium of the Supreme Court of the Russian Federation dated 07.06.2006 No. 71-P06).

At the same time, the courts recognize the lawful interrogation of a lawyer as a witness if the subject of the interrogation is information received by the lawyer not in connection with the provision of qualified assistance to a participant in the process. Recognizing as lawful the resolution of the Basmanny District Court of Moscow dated 03.09.2012 and the Cassation Ruling of the Judicial Board for Criminal Cases of the Moscow City Court dated 12.11.2012, the judge of the Moscow City Court indicated the following: when deciding to interrogate lawyer O.R. Chudnovsky as a witness, the investigator proceeded from the information provided by the Ministry of Internal Affairs of Russia on 29.03.2012, indicating that that one of the unidentified suspects in the criminal case under investigation contacted lawyer O.R. Chudnovsky by phone. The latter was interrogated on 30.03.2012 in order to obtain data about the above-mentioned person, that is, information relevant to the case and not related to the provision of legal assistance by lawyer O.R. Chudnovsky to P. and K. (Moscow City Court ruling of April 24 2013 No. 4u/2-2403).

A prerequisite for the interrogation of a lawyer as a witness in such a situation is the validity of the decision taken by the investigator (since the interrogation of a lawyer changes his further procedural position and makes it impossible to defend his client). As the Constitutional Court of the Russian Federation has repeatedly noted in its decisions, Article 56 of the Code of Criminal Procedure of the Russian Federation does not imply that an investigator has the right, without sufficient factual grounds, to summon a defender participating in the case for questioning as a witness in order to artificially create legal grounds for his recusal (Ruling of the Constitutional Court of the Russian Federation dated 17.07.2018 No. 1941-O "On refusal in accepting for consideration the complaint of citizen Popov Georgy Viktorovich for violation of his constitutional rights by paragraph 3 of part two of Article 38, paragraphs 2 and 3 of part three of Article 56 and paragraph 1 of part one of Article 72 of the Criminal Procedure Code of the Russian Federation", etc.).

However, an analysis of law enforcement practice shows that cases of summoning and questioning lawyers as witnesses are very common. Lawyers are called for questioning not because there are sufficient grounds for this, but for further withdrawal of the lawyer from the case by issuing a decision on his recusal. Investigators especially resort to such methods of abuse when the line of defense and the activity of lawyers pose a threat to the further prospects of a successful investigation in the case ^[2].

The absolute ban on questioning a lawyer as a witness existed until 2003 – until the adoption by the Constitutional Court of the Russian Federation of the Ruling of 06.03.2003 No. 108-O "On the complaint of citizen Tsitskishvili Givi Vazhevich for violation of his constitutional rights by paragraph 2 of part three of Article 56 of the Criminal Procedure Code of the Russian Federation." In the decision, the Constitutional Court of the Russian Federation noted that paragraph 2 of Part 3 of Article 56 of the Criminal Procedure Code of the Russian Federation does not exclude the right of a lawyer to testify in cases when the lawyer and his client are interested in disclosing certain information. However, giving evidence in this case is possible if a number of conditions are met.

First, a lawyer must file a corresponding petition. At the same time, the analysis of judicial practice leads to the conclusion that such a petition should be justified, that is, it should indicate exactly what information, unrelated to the provision of legal assistance to the principal and affecting the final decision on the case, can be reported by the lawyer during his question. Otherwise, the satisfaction of the petition may (and should) to be refused.

 Secondly, there must be the consent of the lawyer to testify, as well as the consent of those whose rights and legitimate interests are directly related to the information received confidentially by the lawyer. It should be noted that the lawyer himself must agree to his interrogation as a witness. This is due to the fact that the principals, wishing to interrogate their lawyers, do not always understand all the legal consequences of such a decision. And only a lawyer, being a professional participant in criminal proceedings, is able, by virtue of knowledge and experience, to assess all possible risks and consequences of his interrogation (to what extent the postulate will be observed: do no harm).    

Thirdly, in connection with the interrogation, the legal status of a lawyer is changed from a defender to a witness, which becomes an obstacle to his subsequently exercising his professional function of providing qualified legal assistance. Both the lawyer and the principal should understand that after questioning the lawyer as a witness, he will cease to be a defender or representative. And the principal will have to turn to another person for help.    

And fourthly, the interrogation of a lawyer as a witness should be aimed at protecting the rights and legitimate interests of the persons who entrusted him with the information. Here the rule is applied, according to which a lawyer does not have the right to act contrary to the legitimate interests of his principal.  

If all these conditions are met, the courts do not have the right to refuse to give testimony to the persons listed in Part 3 of Article 56 of the Criminal Procedure Code of the Russian Federation (including the defenders of the accused and the suspect). Otherwise, the impossibility of questioning a lawyer would lead to a violation of the constitutional right to judicial protection and would distort the very essence of this right. However, the absence of at least one of the conditions is the basis for refusing to interrogate a lawyer as a witness, especially if the lawyer's principal opposes such interrogation (Cassation Ruling of the Supreme Court of the Russian Federation dated 15.12.2009 in case No. 31-O09-34). In general, in judicial practice, the interrogation of a lawyer as a witness on the initiative of the defense is used quite often, as evidenced by numerous court decisions.

Some time after the adoption of the ruling on the Tsitskishvili case, the Constitutional Court of the Russian Federation expanded the possibilities of courts to interrogate lawyers as witnesses. Courts have been granted the right to summon and interrogate lawyers without their consent and the consent of their principals. This was justified by the need to protect the rights and legitimate interests of the suspect, the accused from possible violations of the criminal procedure law by the bodies of inquiry and preliminary investigation. According to the position of the Constitutional Court of the Russian Federation, if, for example, a lawyer is present at the arraignment of his principal, then the violations of the requirements of the criminal procedure law revealed by him in this case must be brought to the attention of the relevant officials and the court in the interests of the principal, that is, such information cannot be considered as attorney-client secrecy. Accordingly, the court has the right to ask the lawyer questions about violations of the criminal procedure law that have taken place, without examining the information confidentially entrusted to the lawyer by the person, as well as other information about the circumstances that became known to him in connection with his professional activity (Ruling of the Constitutional Court of the Russian Federation No. 970-O-O of 16.07.2009 "About refusal to accept for consideration the complaint of citizen Gavrilov Alexander Mikhailovich for violation of his constitutional rights by paragraph 3 of part three of Article 56 of the Criminal Procedure Code of the Russian Federation"). It turns out that in such a situation, the lawyer is considered not as a defender of the suspect, the accused, but as an eyewitness to certain procedural events that occurred before his eyes with his principal (Definition of the Constitutional Court of the Russian Federation of 28.04.2022 No. 846-O "On the refusal to accept for consideration the complaint of citizen Bautin Oleg Gennadievich on violation of his constitutional rights by paragraph 2 of part three of Article 56, part three of Article 195, paragraph 1 of part one of Article 198 and part two of Article 207 of the Criminal Procedure Code of the Russian Federation").

At first glance, such a position of the Constitutional Court of the Russian Federation may seem correct and logical, aimed at protecting the rights of suspects and accused. However, this is not quite true.

Firstly, if we follow the literal interpretation of the decisions of the Constitutional Court of the Russian Federation, then in the future a lawyer can be considered not only as an eyewitness to the procedural violations committed against his principal, but also as an eyewitness to all investigative and other procedural actions carried out with his participation and the participation of his principal. After all, the lawyer was present during the verification of the testimony on the spot, during which no violations were committed? So what prevents interrogating him as an eyewitness to the absence of violations (in order to verify the legality of the investigative action, and at the same time remove the lawyer interrogated as a witness from further defense)?

Secondly, lawyers quite often face violations of the rights of their principals. But after all, they are involved in order to fight such violations as lawyers (persons with the necessary professional knowledge and skills), and not in order to then testify about the violations they saw as a witness. If you constantly consider a lawyer as an eyewitness to illegal actions, and not as a defender of your clients from these illegal actions, is it possible to talk about the provision of qualified legal assistance by lawyers?

Thirdly, the lawyer and his client do not always make public the procedural violations committed by the preliminary investigation bodies, or do not always immediately report them, which may be due to certain defense tactics. The defender has no obligation to ensure compliance with the law in the conduct of investigative actions, those subjects who carry them out are responsible for this ^[3]. However, if a lawyer and his client decide to pay attention to a procedural violation committed by an investigator or an inquirer, they have the right to determine themselves at what point in the criminal proceedings to do so. Imposing on a lawyer an obligation that is not characteristic of his status by a court decision to testify about the procedural violations he has seen may lead to another violation of the rights of his principal. For suspects and accused, this will be a violation of the right to defense ^[4].

In addition, as it is rightly noted in the literature, the interrogation of a lawyer as a witness on the initiative of the court is a difficult situation from an ethical point of view: in this case, the lawyer called for questioning actually has to defend himself against the accusations of his colleague and former principal ^[5].   

The practice of courts of general jurisdiction on this issue is very contradictory. In some cases, the interrogation of a lawyer as a witness for violations of the rights of his clients is recognized as legitimate and justified. For example, in the Appeal Ruling No. 224-APU19-7 of 27.11.2019, the Judicial Board for Military Personnel of the Supreme Court of the Russian Federation indicated the following: reproaching the argument of Atuev's lawyer, the court, at the appropriate request of the prosecution, as was the case in this criminal case, had the right to interrogate Molochkov's lawyer, who defended Ukhigov during the preliminary investigation, on issues of compliance with the criminal procedure law when conducting investigative actions with his participation, which cannot be considered as attorney-client privilege. At the same time, the information confidentially entrusted by Ukhigov to the lawyer, as well as other information about the circumstances that became known to lawyer Molochkov in connection with his professional activities, was not investigated in court, and therefore violations of the requirements of the Criminal Procedure Code of the Russian Federation were not allowed during the interrogation of lawyer Molochkov. In the Ruling of 23.10.2008, No. 73-008-16sp, the Supreme Court of the Russian Federation also recognized the interrogation of the lawyer by Yashina E.S. as legitimate, since she was asked only questions that concerned the lawyer's participation in investigative actions, that is, procedural issues that did not concern the substance of the testimony of her principal (you can also refer to the Cassation Definition of the Third Cassation Court of General Jurisdiction dated 14.01.2021, No. 77-21/2021). The position of the Supreme Court of the Russian Federation on the interrogation of a lawyer as a witness about the circumstances of concluding a defense agreement with him is similar (Ruling of the Supreme Court of the Russian Federation No. 45-O06-86 of 15.01.2007).

However, there are other decisions in which (contrary to the legal position of the Constitutional Court of the Russian Federation) the interrogation of a lawyer as an eyewitness to procedural violations is recognized as illegal.

In the case of A., who was interrogated as an accused on 14.01.2020 in the premises of the temporary detention facility of the OMVD of Russia in the Birsky district of the Republic of Bashkortostan, the following was established: the protocol of this interrogation contains information about the participation in this investigative action of lawyer H.R.R. However, as follows from the response to the request of the court, signed by the acting head of the OMVD of Russia on Birsky district of the Republic of Bashkortostan, according to the log of visitors to the temporary detention facility, lawyer H.R.R. did not visit the temporary detention facility of the OMVD of Russia in the Birsky district of the Republic of Bashkortostan on 14.01.2020. To clarify the circumstances of the interrogation of A. as an accused on 14.01.2020, the court of first instance, at the request of the state prosecutor, was interrogated as a witness by lawyer H.R.R., who stated that he participated in all investigative actions involving his client A., including in a temporary detention facility. The court based the explanations of lawyer H.R.R. on the verdict, using them to refute the arguments of convict A. about conducting his interrogation on 14.01.2020 in the absence of a defender.  

Recognizing the interrogation of the defender illegal, the Sixth Cassation Court of General Jurisdiction referred to the fact that the court, having found out from the lawyer H.R.R. information about the circumstances known to him that are relevant to the resolution of the criminal case, actually interrogated a person who, by virtue of paragraph 2, part 3 of Article 56 of the Criminal Procedure Code of the Russian Federation, has witness immunity. At the same time, the lawyer gave explanations about the circumstances that became known to him in connection with the provision of legal assistance to A., obviously not in the interests of the convicted person, thereby taking a position contrary to the position of his principal, which is prohibited by Federal Law No. 63-FZ of 31.05.2002 "On Advocacy and Advocacy in the Russian Federation" (Definition of the Sixth Cassation Court general jurisdiction No. 77-5594/2022 dated 15.11.2022).

The Sixth Cassation Court of General Jurisdiction took a similar position in the case of S.A. and S.V. (Ruling of the Sixth Cassation Court of General Jurisdiction No. 77-2302/2022 of 17.05.2022), recognizing the interrogation of lawyers who testified against their principals as a significant violation of the criminal procedure law that affected the outcome of the case. In particular, the court found an obvious violation of the convicts' right to defense, expressed in the fact that the defenders who testified after their interrogation continued to defend the defendants (although they became witnesses and had to terminate their powers as defenders).

The above position of the Sixth Cassation Court of General Jurisdiction is more in line with the provisions of the Criminal Procedure Code of the Russian Federation on the right to defense and the norms of the Federal Law of 31.05.2002 No. 63-FZ "On advocacy and advocacy in the Russian Federation" on the inadmissibility of a lawyer to take a position against the will of his principal. This position protects the lawyer and his client from illegal actions and decisions of the judicial authorities.

Summing up the results of the study, it can be concluded that the absolute ban on questioning a lawyer as a witness gradually transformed into a relative ban. This transformation was due not only to the interests of protecting suspects and accused, but also to the interests of justice, which quite often contradict the interests of suspects and accused. The result of the transformation was a rather contradictory judicial practice, as well as systematic violations of the rights of persons to whom lawyers provide qualified legal assistance. In the current situation, it is necessary to bring the practice to a single denominator, recognizing that the interrogation of a lawyer as a witness should be carried out only on the initiative of the defense and only in the interests of suspects and accused, as noted in the Ruling of the Constitutional Court of the Russian Federation in the Tsitskishvili case.