Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 72
Enero
Junio
2022
Recibido el 08/10/2022 Aceptado el 19/12/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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Eduviges Morales Villalobos
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Ma ría Eu ge nia Soto Hernández
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Co mi té Ase sor
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J. M. Del ga do Ocan do
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Re vis ta Cues tio nes Po lí ti cas. Av. Gua ji ra. Uni ver si dad del Zu lia. Nú cleo Hu ma nís ti co. Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas. Ins ti tu to de Es tu dios Po lí ti cos y De re cho Pú bli co
“Dr. Hum ber to J. La Ro che”. Ma ra cai bo, Ve ne zue la. E- mail: cues tio nes po li ti cas@gmail.
com ~ loi chi ri nos por til lo@gmail.com. Te le fax: 58- 0261- 4127018.
Vol. 40, Nº 72 (2022), 203-221
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Normative regulation of witness
immunity in international law
DOI: https://doi.org/10.46398/cuestpol.4072.11
Yevhen Priakhin *
Andrii Lytvyn **
Nataliia Kononenko ***
Yevdokiia Buzhdyhanchuk ****
Irina Dubivka *****
Abstract
Through materialist dialectics, the article is dedicated to the
study and solution of theoretical and practical questions related
to the right of a person not to declare or give explanations about
himself, his relatives, or close relatives. Interested here was the
thorough review of the doctrinal sources of this right, the meaning
and methodology of its research, the concept and content of
the right of a person not to testify, the peculiarities of this right
in Ukraine and in the world, its legislation, as well as its guarantee of
implementation. In addition, based on the analysis of the legislation of each
country, the authors identify the characteristics of the guarantee, analyze
the theoretical aspects and the practical problems of granting the police
and judicial authorities the right not to declare or give explanations about
themselves. It is concluded that the immunity of witnesses means a set of
rules that exempts certain groups of witnesses from the obligation to testify
in criminal proceedings, as well as from the obligation of the witness to
testify against himself. In this sense, immunity for a witness is divided into
two types of imperatives: (absolute, unconditional) and device (relative,
conditional).
* Candidate of legal sciences, Associate Professor, Associate Professor of the Department of Criminal
Procedure and Criminology of the Faculty № 1 of the Institute for Training Specialists for the National
Police of Lviv State University of Internal Aairs, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-
0001-6146-6697
** Candidate of legal sciences, Head of the Kovel Regional Police Department of the Main Directorate
of the National Police of the Volyn Region; Kovel, Volyn Region, Ukraine. ORСID ID: https://orcid.
org/0000-0002-6483-7569
*** Candidate of legal sciences, senior lecturer at the Department of Criminology and Forensic Medicine,
National Academy of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-0298-
3958
**** Candidate of legal sciences, senior lecturer at the Department of Criminal Procedure, National Academy
of Internal Aairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-0389-1641
***** Candidate of Science in law, Senior investigator in especially important cases of the 1st department
of the pre-trial investigation department of the National Police of Ukraine, Kyiv, Ukraine. ORСID ID:
https://orcid.org/0000-0002-7189-3630
204
Yevhen Priakhin, Andrii Lytvyn, Nataliia Kononenko, Yevdokiia Buzhdyhanchuk y Irina Dubivka
Normative regulation of witness immunity in international law
Keywords: criminal proceedings; witness; witness immunity; testimony;
guarantees.
Regulación normativa de la inmunidad de testigos en
la legislación internacional
Resumen
Mediante la dialéctica materialista el artículo está dedicado al estudio
y solución de cuestiones teóricas y prácticas relacionadas con el derecho
de una persona a no declarar ni dar explicaciones sobre sí misma, sus
familiares o parientes cercanos. Interesó aquí la revisión minuciosa de
las fuentes doctrinales de este derecho, el signicado y metodología de su
investigación, el concepto y contenido del derecho de una persona a no
testicar, las peculiaridades de este derecho en Ucrania y en el mundo,
su legislación, así como su garantía de implementación. Además, con
base en el análisis de la legislación de cada país, los autores identican las
características de la garantía, analizan los aspectos teóricos y los problemas
prácticos de otorgar a las autoridades policiales y judiciales el derecho a no
declarar o dar explicaciones sobre sí mismos. Se concluye que, la inmunidad
de los testigos signica un conjunto de normas que exime a ciertos grupos
de testigos de la obligación de declarar en los procesos penales, así como
de la obligación del testigo de declarar contra sí mismo. En este sentido, la
inmunidad para un testigo se divide en dos tipos de imperativos: (absoluto,
incondicional) y dispositivo (relativo, condicional).
Palabras clave: proceso penal; testigo; inmunidad de testigos;
testimonio; garantías.
Introduction
Ensuring the possibility of democracy in the modern sense applies to all
spheres of the state and society, including criminal justice, which involves
a wide range of participants. Accordingly, state protection of rights and
freedoms is needed by all participants of criminal proceedings without
exception, regardless of the procedural status, position, interest in the
results of criminal proceedings (Kharitonova, 2019).
Many countries around the world are currently undergoing reforms and
changes, are in the process of nding the optimal political and legal model
of state building that would meet European standards and a universally
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Vol. 40 Nº 72 (2022): 203-221
recognized system of democratic values. Namely, building a system of
eective state mechanism in the person, rst, of qualied ocials of relevant
public authorities, which would ensure human and civil rights, is one of the
main tasks provided by the Association Agreement between Ukraine and
the European Union.
Legislators of such states often refer to the positive practical experience
of foreign countries in various elds, including the right to ensure the
right of a person not to testify or explain about himself, family members or
close relatives. The implementation of this right in practice is sometimes
inconsistent and ambiguous, both at the regulatory level and at the
institutional and organizational level (Berezhanskaya, 2019). The above
encourages the analysis of ensuring the right not to testify or explain about
oneself, family members or close relatives in foreign countries in order to
study their experience and its further use in Ukrainian realities.
The purpose of the article is to consider the current problems that arise
in connection with the reform of criminal procedure legislation, which
has created certain diculties in law enforcement practice, including the
implementation of the rules governing the institution of witness immunity.
In addition, a detailed analysis requires regulatory regulation of witness
immunity in the legislation of foreign countries.
1. Methodology of the study
The methodological basis for writing this scientic article was the
dialectical-materialist method of cognition of social and legal phenomena,
as well as a set of general and special methods and techniques of scientic
cognition, which currently used in legal literature, which made it possible to
study the problems forms. In the study of doctrinal and normative sources
of the right of a person not to testify or explain about himself, family
members or close relatives, such general scientic methods as observation,
description, comparison were used to determine certain legal categories
that characterize the essence and content of this right.
Special methods were also used, in particular: systematic analysis, as
well as formally logical and system-structural methods, which helped to
clarify the legal nature and essence of the right not to testify or explain to
law enforcement and judicial authorities about themselves, family members
or close relatives; using the formal legal method to study the provisions of
the Constitutions and Criminal Procedure Codes and other legal sources
of Ukraine and other countries, claried the content and meaning of the
concepts and terms used, substantiated conclusions and proposals for their
interpretation in certain proceedings; thanks to the comparative-legal and
structural-functional method, the scientic positions on the procedural
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Normative regulation of witness immunity in international law
guarantees of ensuring and implementing this right were analyzed; the
statistical method contributed to the generalization of the results of the
study of the materials of criminal proceedings; due to of modeling and
forecasting, specic proposals were formulated for the exercise of the
person’s right not to testify or explain about himself, family members or
close relatives.
2. Analysis of recent research
In scientic circles, fundamental work is devoted to ensuring the right
of a person not to testify or explain about himself, family members or close
relatives L. Mises (Mises, 1997), V. Makhov, M. Peshkov (Makhov and
Peshkov, 1998), K. Gutsenko, L. Golovko, B. Filimonov (Gutsenko et al.,
2002), W. Bryson, (Bryson, 1992), N. Volosova, O. Fedorova (Volosova
and Fedorova, 2008), K. Kalinovsky, (Kalinovsky, 2000), T. Loskutova
(Loskutova, 2005), T. Aparova (Aparova, 1996), S. Volkotrub (Volkotrub,
2005), O. Galagan (Galagan et al., 2011), L. Udalova (Udalova, 2004), O.
Belkova (Belkova, 2004).
The scientic achievements of these scientists are beyond doubt,
and some inferences formed the basis of the author’s conclusions and
contributed to the disclosure of problematic issues and develop ways to
solve them. At the same time, certain issues related to the implementation
of the privileges and immunities of the participants in the criminal
proceedings remain unresolved. Today there is a need taking into account
current trends in the development of criminal procedure, a new theoretical
understanding of the legal nature and the concept of witness immunity in
modern conditions; elucidation of the peculiarities of the legal regulation
of criminal proceedings against persons with privileges and immunities
in the post-Soviet countries; determining the features of legal regulation
under the criminal procedure legislation of Ukraine and ensuring the right
of a person not to testify or explain about himself, family members or close
relatives and its compliance with international standards, etc.
3. Results and discussion
3.1. Ensuring the right of a person not to testify about himself,
family members or close relatives in foreign legal systems
Any criminal proceedings cannot be imagined without the participation
of a witness. This is because the witness is an indispensable source of
information that is important for establishing the presence or absence
of circumstances to be proved in criminal proceedings, as well as other
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circumstances that are important for the proper resolution of criminal
proceedings. Witness testimony is the most common type of evidence.
Ensuring the realization of the right of a person not to testify or explain
about himself, family members or close relatives as a constitutional
guarantee against self–blame rst established in the late seventeenth century
in the constitutional law of England. This norm later implemented in the
constitutional law of the United States of America. In the V amendment to
the Constitution of the United States of America and is considered the basic
principle of interrogation of the person both in police, and in particular
in court. The content of the Fifth Amendment to the Constitution of the
United States of America states: “No person shall be compelled to testify
against himself in any criminal case” (Code of criminal procedure of the
republic of belarus, 1999: p. 46).
The rules governing the institution of witness immunity are divided into
separate rules, chapters and sections of most legislative provisions of the
United States, France, the Federal Republic of Germany and the United
Kingdom, as well as a number of other countries. The essence of witness
immunity based on explaining the right of the accused or detainee to remain
silent and to refuse to testify. Meanwhile, the laws of some countries use
concepts such as “witness immunity” and “witness testimony privilege”.
For example, United States legislation contains both the notion of
“witness immunity” and the notion of “witness testimony privilege”, using
the term “privilege” and treating this right as immunity (Maklakov, 1997).
Theoretical approaches of foreign scholars consider privilege as a privilege
(Maklakov, 1997). For example, L. Mises position based on the identity of
such concepts as privileges and privileges (Mises, 1997). The laws of Great
Britain, the United States, Canada, and other countries speak of privileges.
The legislation of the United States of America considers immunity for a
witness and the privileges of witnesses as independent legal categories and
denes them as: 1) the privilege against self–incrimination (or the right to
silence); 2) the privilege of witness testimony; 3) immunity of witnesses.
Privileges are provided for the testimony of witnesses, for example, for the
accused it is a privilege of self–blame.
The privilege of self–incrimination in the criminal proceedings and
judicial practice of the United States of America and the United Kingdom is
expressed in three basic rules, which explain to the detainee that he has the
right to remain silent; everything he says can be used as evidence against
him; he has the right to be present during the interrogation of a lawyer
(Makhov and Peshkov, 1998). It should be noted that this rule applies only
to suspects who are under arrest, as far as persons who are not under arrest
are concerned, this rule does not apply to them (Bryson, 1992).
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Normative regulation of witness immunity in international law
The provisions of the immunity of witnesses are set out in Art. 6001–
6005, placed in Chapter 18 of the Code of Laws of the United States of
America and contain only the general rules of this institution. K. Gutsenko
aptly stated that, many of its details are specied in the norms of unwritten
law and approved by the courts in the relevant rules. You can also get an
idea of them under the Unied Rules of Criminal Procedure and borrowed
almost entirely from many states of the State Model Law on Witness
Immunity (Gutsenko et al., 2002).
Legislation on witness immunity diers signicantly from state to
state and diers from that in federal law, so it should be noted that United
States law does not contain uniform provisions governing the institution of
witness immunity.
The provisions on witness immunity were established by the Fifth
Amendment to the Constitution of the United States of America and stated
that no one should be coerced in a criminal case, to be a witness against
himself. In addition, part of this provision is the XIV Amendment to the
Constitution of the United States of America, which prohibits involuntary
admission of guilt. The considered provisions began to have a signicant
impact on law enforcement practice only after the decision in the Miranda
case on June 13, 1966. Prior to this decision, police ocers applied such
measures of inuence to detainees that would allow them to obtain a
confession.
An important component of witness immunity is the voluntary testimony
given by the detainee. This has been repeatedly pointed out by the Supreme
Court of the United States of America. Considering Miranda’s case, he noted
“the need to create conditions for the application of the Fifth Amendment
to the Constitution of the United States not only in the courtroom, but also
in any other place where a person may be in danger of restricting his rights
and freedoms. Compliance with the rules of voluntary testimony of the
United States Supreme Court proposes to support the relevant guarantees”,
which are reected in the law.
These include the responsibilities of persons conducting criminal
proceedings. E. Warren claries the procedure, stating: “prior to the
interrogation, the person must be warned of his or her right to remain silent,
and any statement made by him or her may be used as evidence against
him or her. She has the right to have a lawyer. The accused may waive
these rights, but in this case, it is necessary to check the voluntariness and
awareness of his decision. If the accused later in any stage of the criminal
case shows a desire to have a lawyer, questions in this case he cannot be
asked (Israel et al., 1989).
US law pays special attention to the admissibility of evidence in
connection with the application of the provisions of witness immunity and
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the admission of guilt by the accused. Violation of the criminal procedure
is grounds for declaring the evidence inadmissible. These provisions are
set out in IV, V, VI, XIV amendments to the US Constitution. When the
evidence is declared inadmissible, the principle of “fruits of a poisoned
tree” applies. According to him, all data, information, and information that
became known through the use of inadmissible evidence are excluded from
the evidence base in a criminal case.
The prohibition on the use of physical and mental coercion in the
investigation process is linked in US law to the question of the admissibility
of such recognition. It is the duty of the court to carefully consider such
complaints. Any person shall, after such circumstances have been
established, be released from any persecution (Volosova and Fedorova,
2008).
The implementation of witness immunity is impossible without
explaining to the accused the consequences of his consent to testify. At the
same time, the legislator provided a number of guarantees for the voluntary
nature of such recognition, placing the burden of proving this fact on the
prosecutor. Both federal and state law provides for these responsibilities.
In many legal provisions of foreign law, the provisions of witness
immunity are considered as part of the right to protection. For example,
in United States law, before any interrogation, a person should not only
be warned in clear and unambiguous terms that he or she has the right to
remain silent, that anything he or she says may be turned against him or
her, but that she has the right to have a lawyer present.
The presence of a lawyer during interrogation is one of the guarantees
of the voluntary confession made by the accused (Kalinovsky, 2000). The
United States Criminal Procedure also establishes a rule that a detainee
may refuse to testify at any time during questioning or answer certain
questions, indicating the need to consult with his or her lawyer. In this case,
the interrogation must be terminated (Volosova and Fedorova, 2008).
According to the analysis of foreign constitutional and other sectorial
legislation, today such a rule is reected in most constitutions of the world.
The Constitution of the Kingdom of Spain (Article 24) guarantees
everyone the right to eective protection by a judge and a court in the
exercise of their legitimate rights and interests, and in no case is such
protection denied. According to part 2 of the mentioned article, everyone
also has the right to: – consideration of his case by the judge to whose
jurisdiction it is assigned by law, – protection and assistance of a lawyer,
– information on the accusation, observance of all guarantees, – to use all
means of evidence provided for protection, – not to testify against oneself,
– not to plead guilty, – to the right of presumption of innocence. The law
denes the cases when due to family ties or professional secrecy, a person
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Normative regulation of witness immunity in international law
is not obliged to testify about actions that may previously be considered
illegal” (Сonstitutions of the EU, 2021).
Thus, we see the similarity of the investigated law only in the part not to
testify about oneself. Family members and close relatives are not mentioned
in the article of the Spanish Constitution, which, in fact, is the right to dier
from the constitutional and other sectorial legislation of Ukraine.
A comprehensive analysis of the right of a person not to testify or explain
about himself, family members or close relatives forces us to pay attention
to the legislation and practice of its implementation in other countries. In
contrast to the legislation of unitary states, the national legislation of federal
states provides for slightly dierent constitutional provisions, as well as the
relevant provisions, detailed at the level of other sectorial legislation.
Thus, the Constitution of the Federative Republic of Brazil (Article 5,
paragraph LXIII) requires that every detainee be informed of his rights,
including the right not to answer questions, namely: “The detainee must be
informed of his rights, including the right to remain silent, a guarantee for
help from family and a lawyer” An analogy is seen, in fact, as in the above
states.
The right of a person not to testify or explain about himself, family
members or close relatives is also reected in German law. According to
the Constitution and the German Code of Criminal Procedure, testifying
is a right, not an obligation, of the accused. Therefore, the representative
of the body conducting the criminal proceedings should be explained that
he may refuse to testify in the case. The defendant’s admission of guilt in
committing a criminal oense, in contrast to French law, is conclusive
evidence.
It is interesting that the refusal to plead guilty entails an increase in
punishment. In turn, the Constitution of France enshrines that everyone
has the right not to testify against himself enshrined in sectorial law. It can
be concluded that in France the right of a person not to testify or explain
about himself, family members or close relatives has a double meaning,
namely: it is a means of proof that is necessary to establish in the case;
is considered as one of the means of exercising the right to protection
(Сonstitutions of the EU).
There are several prohibitions on evidence in the German Code of
Criminal Procedure, which are divided into two groups. The rst of these
is the prohibition of establishing certain factual circumstances (related,
for example, to a state secret) and the use of certain sources of evidence
(for example, immunity for a witness). The second group of circumstances
includes evidence that signicantly violates the legal sphere of the accused
(Filimonov, 1994). Thus, foreign law is usually quite meticulous about
compliance with the rules of witness immunity as a condition for the
admissibility of evidence.
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The second important privilege is the privilege that exempts relatives
from testifying as well as others. It should be noted here that in some
legislative acts this list contains a certain list, in others this list may vary.
Yes, Art. 335 of the Criminal Procedure Code of France in the circle of
such persons, in addition to relatives, includes a former spouse; a person
engaged to the accused.
The peculiarity of the criminal proceedings of the United States of
America is the lack of a single unied national list of persons who have the
privilege of a witness. For example, the law of the United States of America
pays great attention to the protection of the interests of the accused and his
defense counsel (Volosova and Fedorova, 2008).
As noted by T. Loskutova, these privileges are derived from the
main privilege of the witness – the privilege against self-blame, and are
designed to protect relationships that are trusting, condential. In granting
these privileges, the court may prohibit the disclosure of certain types
of information without the consent of the person, but does not prohibit
witnessing in court (Loskutova, 2005).
The legislation of other countries has additional guarantees for the
protection of various types of secrets. For example, Art. 60 of the Criminal
Procedure Code of the Republic of Belarus provides for the possibility
to request permission to disclose the circumstances that are the subject
of medical secrecy from a person who has applied for medical care, and
the position of interrogation of a doctor depends on his position (Code of
criminal procedure of the republic of belarus, 1999).
The legislation of foreign states reects the tendency of the ratio of
private and public principles. The privilege of self–incrimination in the law
of Great Britain traces the protection of public interests. The interrogation
of the suspect and accused under British law is preceded by a warning in the
following statements:
You are accused of committing the following crime. You don’t have to say
anything. But it can complicate your defense if you don’t mention something you
expect to refer to later in court. Everything you say can be evidence in the case”
(Aparova, 1996: 32).
Meanwhile, a police ocer in criminal proceedings in the United
Kingdom is allowed, with an appropriate warning about the accused’s right
to remain silent, to ask clarifying questions or questions aimed at preventing
or reducing harm to others (Aparova, 1996). In the United Kingdom, with
the consent of the defendant to testify, he is subject to the procedure of
questioning a witness. In this case, he is criminally liable for refusing to
testify and for giving knowingly false testimony. It should also be noted
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Yevhen Priakhin, Andrii Lytvyn, Nataliia Kononenko, Yevdokiia Buzhdyhanchuk y Irina Dubivka
Normative regulation of witness immunity in international law
here that for refusing to testify, the accused is liable for contempt of court
(Kalinovsky, 2000).
As for the police instructions, they clearly stated that the interrogation
should be conducted based on a person’s guilt, indicating to him that
silence may be used against him (Israel et al., 1989). According to Rule 11
of the Federal Criminal Procedure Code of the United States, “if he agrees
to testify before a grand jury under oath, the accused must be aware that he
may be prosecuted for false testimony”. The American legislator proceeds
from the fact that “in the course of the trial there is no need to lie in order to
protect oneself”. In this regard, the state criminal procedure codes provide
for liability for false testimony of suspects and accused, while retaining
their right to remain silent (Volosova and Fedorova, 2008).
Another position is taken, for example, by the Supreme Court of the
Federal Republic of Germany, which points to the possibility of increasing
the punishment when the defendant denies guilt, does not want to repent,
and realize what he has done, testies to the hardened criminal, the
possibility of future crimes (Gutsenko et al., 2002).
The existing democratic and humanistic principles of protection of
human and civil rights and freedoms in the legislation of the United States
of America are closely interrelated with the priority of state interests in the
ght against crime. A witness who is granted the right to witness immunity
may be summoned to court under United States law, but the legislature
prohibits his or her from being prosecuted, even if the information provided
to him or her contains information about his or her unlawful conduct.
According to Art. 6003 of the Federal Rules of Judicial Procedure (Interim
and nal relief immediately following the commencement of the case), such
a person may be summoned for questioning by an attorney representing
the state. However, he must obtain the consent of the Minister of Justice
and the Attorney General and justify that the information provided by the
witness protects the interests of society and the state.
Article 52.05 of the legislation of the state of Texas establishes the bases
of the compelled testimony – immunity of witnesses. A person may be
required to testify when it is legally recognized that this is necessary for the
Commission of Inquiry in the interests of justice. However, a person may
refuse to testify on the grounds that he or she is afraid of being prosecuted.
In this case, the judge may oblige the person to testify, but by providing a
guarantee against criminal prosecution, this reects the legal nature of the
immunity of witnesses.
Witness immunity rules apply to administrative cases and any hearings
in the United States Congress. The Congress of the United States of America
has the right to apply to the district court for such permission if a person is
to be questioned at a congressional hearing. At the same time, the majority
of members of Congress must vote in favor.
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By providing for a special procedure for the implementation of the
provisions of witness immunity, the legislature obliges a person to testify
in court, at hearings in Congress and in other cases if the information
provided is relevant to society. According to the legal provisions, a person
can be obliged to testify only against himself, these rules do not apply to
information about relatives. Despite the importance of the precepts of the
right not to testify against oneself, there is no unanimity among practitioners
and researchers about the appropriateness of the Miranda rules.
These statements are based on a study of public opinion, which in recent
years tends to consider the eectiveness of the ght against crime, rather
than the question of the development of witness immunity under the rules of
Miranda. The problem of expediency of their preservation and application
in criminal proceedings remains relevant and open. “Arguments against
these provisions are based on two postulates.
The rst of them based on the need to protect, rst, the interests of
justice and citizens. The basis of the second is the need to combat rising
crime. These arguments allowed their supporters to persuade the legislator
to adopt in 1968 the “Joint Law on Crime Control and Security on the
Streets”. This is a convincing example of protecting the public interest
and creating conditions for it. The Supreme Court of the United States of
America joined the solution of this problem, formulating an exception to
the rules of Miranda. They are due to the need to protect society from crime
and delinquency.
The eectiveness of measures aimed at combating domestic violence is
also developed in the criminal procedure legislation of the United States of
America. The prohibition on the use of witness privileges makes it possible
to combat crimes committed by the accused against members of his family,
including minors and minor children. In particular, Art. 38.10 Texas
procedural law prohibits a person who has committed a crime against a
husband (wife), child or other family member from exercising the privilege
of silence (refusal to testify).
The criminal procedure legislation of a number of countries provides
for the possibility for the legal representative of a minor to decide whether
to testify or to refuse to testify against close relatives and the opportunity
to exercise the right to witness immunity. § 52 of the Criminal Procedure
Code of Germany provides for the possibility of refusing to testify if minors
due to intellectual immaturity or infancy, or persons in custody due to
mental illness or mental retardation, do not suciently represent the right
to refuse to testify. They may be questioned only if they are ready to testify
and their legal representative has consented to the questioning. In that
case, if the legal representative himself is the accused, he cannot decide on
the exercise of the right to refuse to testify. If both parents have the right
to legal representation, one of the parents cannot resolve this issue without
the consent of the other parent.
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It is necessary to note a number of positive factors in the implementation
of witness immunity in foreign law: 1) immunity for a witness is an eective
mechanism for combating violations of the rights of the accused; 2)
immunity for a witness allows to exclude inadmissible evidence in the course
of proceedings in a criminal case; 3) immunity for a witness, establishing
exceptions in the exercise of the right not to testify against oneself, is an
important tool of law enforcement agencies aimed at combating crime.
The study of foreign legislation, law enforcement experience of foreign
countries will avoid mistakes in the process of regulation and in the process
of law enforcement of witness immunity in Ukraine.
3.2. Features of legal regulation of criminal proceedings against
persons with privileges and immunities in the post-Soviet
countries
Analyzing the legislation of Georgia, it can be argued that compared to
other countries, they have the most severe system of prosecution for violation
of any right and evasion of responsibility, as well as “failure to report” or
“concealment” of the crime. In Georgia, it can be noted that a person’s right
not to testify or explain about himself, family members or close relatives
is almost non–existent, as “failure to report” or “concealment” of a crime
entails criminal liability of 2 to 4 years in prison (Criminal Procedure Code
of Georgia, 1999).
In our opinion, this is a violation of a person’s right not only to testify
or explain about himself or herself, but also about family members or close
relatives. After all, if a person refuses to give an explanation or testimony,
it may already be grounds for criminal or other liability. Georgian police
argue that this makes it possible to solve crimes faster and better.
After all, people who have committed a crime, as a rule, have the right not
to testify against themselves, family members or close relatives, which does
not allow to quickly solve crimes. In turn, the Constitution of the Republic
of Lithuania also provides for the possibility of not giving testimony or
explanations about oneself, family members or close relatives. Thus, in Art.
31 of the Constitution stipulates: “it is prohibited to force to testify against
oneself, members of one’s family or close relatives” (Constitution of the
Republic of Lithuania, 1999).
Armenia’s criminal procedure law contains a large list of provisions
relating to the institution of witness immunity. They are located in
various sections, chapters and norms of criminal procedure legislation. A
characteristic feature of the criminal procedure legislation of the Republic
of Armenia is that the provision of witness immunity is an integral part of
the two main principles contained in Art. 19 and 20 of the Code of Criminal
Procedure of Armenia – the right of the suspect and accused to protection
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and his provision and freedom from testifying, respectively (Criminal
Procedure Code of the Republic of Armenia, 1998).
Part 5 of Art. 19 of the Criminal Procedure Code of Armenia prohibits
forcing the suspect and accused to testify, present materials to the body
conducting the criminal proceedings, or provide him with any assistance.
Art. 20 exempts from testifying against oneself, husband (wife) and close
relatives. Part 2 of this rule indicates that a person to whom the body
conducting the criminal proceedings oers to provide information or
provide materials substantiating his guilt, the guilt of his husband (wife) or
close relatives in the commission of a crime, has the right to refuse to report
bird information and provide materials (Criminal Procedure Code of the
Republic of Armenia, 1998).
The legislator notes the special importance of the provisions of witness
immunity and therefore considers them not only an integral part of the
principle of the right of the suspect and accused to protection and provision,
but also an independent principle of criminal procedure law of Armenia.
The right to witness immunity may be exercised by any participant in
criminal proceedings. The right not to testify against oneself belongs to
the victim, suspect, accused, witness, civil plainti and defendant. This
conclusion follows from the analysis of the provisions contained in Art.
59, 61, 63, 65, 66 of the Criminal Procedure Code of Armenia and other
provisions of the law governing the participation of these persons in criminal
proceedings. These rules provide an opportunity to refuse to testify against
your husband (wife), as well as to testify against their close relatives. The list
of close relatives in the legislation of Armenia is quite large. Close relatives
in accordance with paragraph 40 of Art. 6 of the Criminal Procedure Code
of Armenia are parents, children, adoptive parents, adopted children, full
and half-brothers and sisters, grandfather, grandmother, grandchildren, as
well as husband (wife) and parents of husband (wife) (Criminal Procedure
Code of the Republic of Armenia, 1998).
The legislator also provided for the category of persons obliged to remain
silent. Cannot be called and questioned as witnesses on the basis of Art. 86
of the Criminal Procedure Code of Armenia are the following persons: who
due to physical or mental disabilities are not able to correctly perceive and
reproduce the circumstances to be established in a criminal case; lawyers
to identify information that may be known to them in connection with
seeking legal assistance or providing such assistance; who became aware
of the information relating to this criminal case, in connection with the
participation as a defense counsel, representative of the victim, civil plainti,
civil defendant in the criminal case; a judge, prosecutor, investigator,
investigator and court clerk in connection with a criminal case in which
they exercised their procedural powers, except in cases of investigation
of errors and abuses committed in the proceedings, reopening of the case
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Normative regulation of witness immunity in international law
under newly discovered circumstances or restoration of lost proceedings;
ordained priest–confessor about the circumstances that became known to
him from confession.
Armenian law provides for another type of witness immunity – the
privilege of testifying under Art. 448 of the Criminal Procedure Code of
Armenia. This privilege extends to diplomatic and consular representatives.
These persons are given the privilege not to be interrogated as witnesses
and victims, to enjoy the privilege of providing correspondence or other
documents related to the performance of their ocial duties. In addition,
the Code of Criminal Procedure of the Republic of Armenia on the basis of
and taking into account the rules of international law placed in a separate
chapter of the proceedings in the cases of persons enjoying privileges and
immunities established by international law and international treaties
(Сriminal procedure code of the republic of Armenia, 1998).
Analys of the norms of the criminal procedure legislation of the Republic
of Armenia allows us to conclude that immunity for a witness extends to the
range of persons dened by law, whom the legislator divides into several
categories. Immunity for a witness as a privilege extends to participants in
the process, as well as their close relatives. The second category consists
of persons who are obliged to keep condential information due to ocial
duty or a special mission assigned to a person (for example, a clergyman).
The third group consists of persons enjoying diplomatic immunity and
immunities.
The regulation of witness immunity in other countries and in the
countries of the former Soviet Union was considered in more detail in the
monograph “Regulations on Witness Immunity in Criminal Proceedings in
Russia and Foreign Countries” (Volosova, 2011: 39).
Analyzing foreign experience in ensuring the right of a person not to
testify against himself, family members and close relatives, it is possible to
state a variety of ways to consolidate and implement this right. In almost
all countries, it is possible for a person not to testify or explain himself or
herself, family members or close relatives. Such an opportunity is provided
to a person both in the context of a clearly dened constitutional right and
in the context of the relevant guarantees, and in some cases even in the
context of an obligation.
The latest legislation in European countries clearly outlines two
prospects for the development of the constitutional right of a person not
to testify or explain about himself, family members or close relatives.
The rst is to expand the range of persons endowed with this right. The
second trend is to extend the right of a person not to testify or explain about
himself, family members or close relatives to other crimes against justice.
In particular, the legislation of Lithuania and Poland abolishes criminal
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liability for giving false testimony to victims or witnesses if they do so in
order to avoid liability of their family members or close relatives.
3.3. Legal regulation of witness immunity in Ukraine and its
compliance with international standards
In the theory of criminal procedure law of Ukraine, it is accepted to
consider immunity for a witness as a legal institution (Volkotrub, 2005).
Thus, in Part 2, Article 4. 65 of the Criminal Procedure Code of Ukraine
states which categories of witnesses are endowed with immunity, i.e., are
released by law from the obligation to testify. In particular, the following
may not be questioned as witnesses: defense counsel, representative of the
victim, civil plainti, civil defendant, legal entity subject to the proceedings,
legal representative of the victim, civil plainti in criminal proceedings – the
circumstances that became known to them in connection with performing
the functions of a representative or defender; lawyers – about information
that is a lawyer’s secret; notaries – about information that constitutes a
notarial secret; medical workers and other persons who, in connection
with the performance of professional or ocial duties, became aware of
the disease, medical examination, examination and their results, intimate
and family aspects of a person’s life – information that is a medical secret;
clergy – about the information they received at the confession of the faithful;
journalists – about information that contains condential information of a
professional nature, provided that the authorship or source of information is
not disclosed; judges and jurors – on the circumstances of discussion in the
deliberation room of issues that arose during the court decision, except in
cases of criminal proceedings for the adoption of a judge (judges) knowingly
unjust sentence, decision; persons who participated in the conclusion
and execution of the conciliation agreement in criminal proceedings –
on the circumstances that became known to them in connection with the
participation in the conclusion and execution of the conciliation agreement;
persons to whom security measures have been applied – regarding valid
data about their persons; persons who have information about valid data
about persons to whom security measures have been applied – regarding
these data.
Nor may persons with the right of diplomatic immunity, as well as
employees of diplomatic missions, be questioned as witnesses without their
consent, without the consent of a representative of the diplomatic mission
(Criminal Procedure Code of Ukraine, 2012).
As already mentioned, the Criminal Procedure Code of Ukraine denes
the immunity of a witness as the right to refuse to testify in certain cases by
law. Such an interpretation could be considered controversial, as the term
“witness immunity” has a completely dierent meaning. Foreign criminal
procedure doctrine, considering the experience practiced in the United
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Normative regulation of witness immunity in international law
States, interprets the institution of witness immunity as exemption from
criminal liability and punishment of persons who, under the circumstances
specied by law, may be obliged to give so–called self–incriminating
testimony (Belkova, 2004). In our opinion, the interpretation of witness
immunity as an opportunity to “refuse to testify against oneself” is
also controversial from the point of view of the etymology of the word
“immunity”.
The question of whether the provision on witness immunity extends to
the former spouse is relevant for consideration. This issue has been resolved
by the legislator in some Western European countries. For example, § 52 of
the Criminal Procedure Code of the Federal Republic of Germany stipulates
that the right to refuse to testify has the husband (wife) of the accused, even
after the divorce (Galagan, 2011). This article also stipulates that a person
engaged to an accused has the right to refuse to testify.
We believe that the lack of provisions of paragraph 1 of Part 2 of Art. 65
of the Criminal Procedure Code of Ukraine is that in it the legislator ignored
the prohibition of interrogation as a witness of a representative of a third
party, whose property is being resolved for arrest.
In accordance with Part 4 of Art. 64-2 of this Code, such a representative
may be: a person who has the right to be a defense counsel in criminal
proceedings; manager or other person authorized by law or constituent
documents, employee of a legal entity by power of attorney – if the owner
of the property under arrest is a legal entity. The third person, whose
property is being seized, appeals to these persons with a request to ensure
the realization of his rights, to take measures aimed at denying or refuting
the grounds for the application of special conscation of property.
The said person must be sure that the information communicated to him
will not be used against him. In our opinion, it is necessary to supplement
item 1 of h. 2 Art. 65 of the Criminal Procedure Code of Ukraine, a provision
that is not subject to interrogation as a witness by a representative of a third
party in respect of whose property the issue of arrest is being resolved – the
circumstances that became known to him in connection with the function
of representative.
Conclusions
1. Thus, witness immunity is a set of rules that exempts certain groups
of witnesses from the obligation to testify in criminal proceedings,
as well as from the witness’s obligation to testify against himself.
In this regard, immunity for a witness is divided into two types of
imperatives (absolute, unconditional) and dispositive (relative,
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conditional). Witness immunity is an important institution that
ensures principles such as the presumption of innocence and the
protection of human and civil rights and freedoms in criminal
proceedings, so it is necessary to eliminate problems, gaps and
improve existing legislation governing this institution.
2. Ensuring the constitutional right of a person not to testify or
explain about himself, family members or close relatives is a specic
socially necessary and legally regulated activity of public authorities
and their ocials, aimed at creating appropriate conditions for
implementation, protection, defense and restoration of this right of
persons who are in the status of a victim, suspect, accused, defendant,
plainti, defendant, applicant, debtor, witness or other subjects of
procedural relations.
3. The system of normativelegal sources of the right of a person not
to give testimony or explanations about himself, family members or
close relatives consists of: international legal acts, the Constitution of
Ukraine; sectoral legislation, case law in this area.
4. The study of foreign legislation revealed the following patterns in
the development of the institution of witness immunity in the Anglo-
Saxon and Romano-Germanic legislation:
a) AngloSaxon law proposed the division of witness immunity
into two independent institutions – the immunity of witnesses
and witnesses of privileges. Under most law, witness privileges
extend to the accused and his or her relatives. With regard
to witness immunity, its provisions apply to other persons
involved in criminal proceedings.
b) RomanoGermanic law (legislation of Germany, France,
Belarus, Armenia, Georgia) is characterized by a clear denition
of the category of persons entitled to witness immunity, which
distinguishes these provisions from the provisions of US law,
in which the list of such persons is the prerogative of only
federal law, but more the prerogative of state law.
c) under the legislation of the studied countries, the violation
of the right not to testify related to the voluntary testimony,
which in turn is correlated with the admissibility of evidence.
5. In order to properly resolve the issue of problematic aspects of the
institution of witness immunity, it is reasonable to supplement
paragraph 1, part 2 of Art. 65 of the Criminal Procedure Code of
Ukraine, a provision that is not subject to interrogation as a witness
by a representative of a third party in respect of whose property the
issue of arrest is being resolved – the circumstances that became
known to him in connection with the function of representative.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 72
