1. In the cases provided for by Article 182, part three_1 of Article 183, Articles 184 and 193 of this Code, investigative actions are carried out with the participation of at least two witnesses who are called to certify the fact of the investigative action, its progress and results, except for the cases provided for part three of this article.
1.1. In cases provided for in Articles 115, 177, 178, 181, Article 183 (except for the cases provided for in part three_1), part five of Article 185, part seven of Article 186 and Article 194 of this Code, witnesses take part in investigative actions at the discretion of the investigator. If in these cases, by decision of the investigator, witnesses do not participate in investigative actions, then the use of technical means of recording the progress and results of the investigative action is mandatory. If it is impossible to use technical means during an investigative action, the investigator makes a corresponding entry in the protocol.
2. In other cases, investigative actions are carried out without the participation of witnesses, unless the investigator, at the request of participants in criminal proceedings or on his own initiative, makes a different decision.
3. In hard-to-reach areas, in the absence of proper means of communication, as well as in cases where the implementation of an investigative action is associated with a danger to the life and health of people, the investigative actions provided for in part one of this article can be carried out without the participation of witnesses, as indicated in the investigative protocol actions, a corresponding record is made. If an investigative action is carried out without the participation of witnesses, technical means of recording its progress and results are used. If it is impossible to use technical means during an investigative action, the investigator makes a corresponding entry in the protocol.
4. In the case of the participation of attesting witnesses, the investigator, before starting the investigative action in accordance with part five of Article 164 of this Code, explains to the attesting witnesses the purpose of the investigative action, their rights and responsibilities provided for in Article 60 of this Code.
Article 170 of the Code of Criminal Procedure of the Russian Federation. Participation of witnesses (current version)
1. On the concept and procedural position of a witness, see commentary. to Art. 60.
2. The participation of witnesses is an important guarantee of certifying the objectivity of the evidence obtained. Therefore, witnesses do not participate in those investigative actions that are based on the subjective method of questioning (interrogation, confrontation, examination). Witnesses may be needed in those actions that are based on an objective observation method (for example, inspection, search, examination). Therefore, according to Part 2 of Art. 170 of the Code of Criminal Procedure, the participation of witnesses is advisable in the examination (Article 179) and when obtaining samples for comparative research (Article 202). The Code recognizes the mandatory presence of attesting witnesses to verify the fact that a person cannot sign the protocol when his representatives do not participate in the investigative action (Part 3 of Article 167).
3. Part 3 of the commented article established a new exception for domestic legislation to the rule on the mandatory participation of witnesses. Any investigative action can be carried out without witnesses for one of two reasons:
1) the place where the investigative action is being carried out is difficult to access and there are no appropriate means of communication. In practice, inaccessibility means the impossibility of delivering witnesses to the place of investigative action due to objective reasons, including the lack of means of communication. If the investigator is located in a difficult-to-reach high-mountainous area, but he has a real opportunity to ensure the participation of witnesses (for example, from among the climbers who happened to be nearby), then within the meaning of the article being commented on this place is not difficult to access, i.e. does not give the right to conduct investigative actions without witnesses;
2) the conduct of an investigative action is associated with a specific danger to the life and health of witnesses. In this case, the danger must already exist before the start of the investigative action, since the creation by the investigator himself of a danger to health is directly prohibited by law (Part 4 of Article 164 of the Code of Criminal Procedure). The danger should not be abstract (ice on the street can lead to a fall during an inspection), but concrete (for example, increased background radiation leads to a radiation dose, the danger of an explosion when inspecting a pyrotechnic object). The presence of danger excludes the participation of witnesses even if they are willing and ready to do so (unlike the first reason).
In addition to the existence of grounds for carrying out investigative actions without witnesses, the following conditions must be met:
a) the urgency of the situation, i.e. a real threat of loss of traces, concealment of wanted persons and property if there is a delay in carrying out investigative actions (for an urgent situation, see the commentary to Articles 157, 165). For example, at night in a place remote from a residential area, the investigator cannot ensure the participation of witnesses during the inspection. However, if the situation allows it to be carried out the next day (in a week), then the inspection cannot be carried out without witnesses. For example, the accused named a specific place in the forest where he hid the stolen property. We must prepare to leave to inspect this place, including inviting witnesses with us. The absence of an emergency situation may make it possible to first eliminate the danger to the life and health of witnesses, and then carry out an investigative action;
b) the use of additional technical means of recording the progress and results of the investigative action (along with the protocol). These means must be adapted to record observation results (video recording, filming, photography).
This condition may not be met if it is objectively impossible to use technical means (lack of technical means in an emergency or unfavorable external conditions: strong electromagnetic radiation, heavy rain, etc.). In other cases, the investigator must prepare in advance technical means for recording investigative actions carried out without witnesses. Therefore, the lack of consumables and equipment is not a valid reason for not using technical means of fixation. If the investigative action specified in Part 1 of Art. 170 of the Code of Criminal Procedure, carried out without witnesses and without the use of technical means of recording (when it was objectively possible to do this), then its results should be recognized as unacceptable evidence (Part 3 of Article 7).
4. Witnesses are invited before the start of the investigative action and are present until its completion by drawing up a protocol. In this case, the main thing is that the witnesses perceive the circumstances that are significant for the criminal case. About these circumstances, in order to resolve the issue of the admissibility of the evidence obtained, witnesses can be questioned as witnesses (Part 8 of Article 234 of the Code of Criminal Procedure).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Concept and types of inspection
This is one of the types of investigative actions, and it consists of finding and examining things that may be important for the investigation of the incident. In other words, the main purpose of an examination is to gather sufficient evidence through observation.
Important! The essence of the procedure is not determined by the direct seizure of things, but only by studying the situation and assessing it.
There are several types of inspection:
- the scene of the incident;
- external examination of the body of the deceased;
- things/documents;
- animals;
- exhumation of the body;
- areas of terrain and premises;
- examination.
Registration of execution of state duties.
The release of an employee from work to perform government duties is formalized by an order of the employer, which is issued in any form.
The basis for issuing an order when summoning an employee to court, the prosecutor's office, the tax inspectorate or bodies of inquiry and investigation is a summons (notification). A judicial summons is recognized as one of the forms of judicial notices and summonses in criminal, administrative and civil cases.
Court summonses and other court notices contain:
- name and address of the court;
- time and place of the court hearing;
- name of the addressee - the person notified or summoned to court;
- an indication as to whom the addressee is notified or called;
- name of the case for which the addressee is notified or summoned.
The bodies of inquiry also summon witnesses and victims for questioning by subpoena. The summons indicates who is being summoned and in what capacity, to whom and at what address, and reflects the date and time of appearance for questioning (Article 188 of the Code of Criminal Procedure of the Russian Federation).
In addition, the summons indicates the obligation of the summoned persons to appear, and also indicates the consequences of failure to appear without good reason.
For your information:
Jurors and arbitration assessors are summoned to participate in court hearings by sending a notice to the jury or by a court ruling.
Please note that if an employee has submitted a summons or other notice from which it does not follow that he is being called as a witness, victim or other person to perform government duties in the framework of a criminal or other case, then the employer is not obliged to release him from work.
Thus, in the Appeal ruling of the Moscow Regional Court dated September 12, 2016 in case No. 33-22689/2016, the reason for the employee’s absence from work in connection with his summons to court was recognized as disrespectful, and the order to impose a disciplinary sanction on him was considered legal.
The essence of the case was that the investigator, on his own initiative, summoned the employee to court as a witness, since he needed it to support the petition in the criminal case.
At the same time, no evidence was presented of the employee being summoned to court or law enforcement agencies to testify as any procedural status.
The judges indicated that the investigator's notification of the employee's appearance is not considered confirmation of his calling as a witness in a criminal case in accordance with the requirements of the Code of Criminal Procedure of the Russian Federation. Moreover, this notification is also not a summons to the plaintiff to carry out any investigative actions, to give evidence to the investigator in the framework of a criminal case and to carry out investigative actions, but is recognized only as an initiative of the investigator himself to support the presentation submitted by the prosecutor in court.
In addition, it was established that the court itself did not call the employee as a witness.
Of course, in this situation we can say that the employee suffered through no fault of his own. He probably thought he had done his duty honestly. But it turned out differently.
Therefore, you need to carefully study the agenda. If it does not follow from its content that the employee has the status of a person performing public duties, and especially if he is a plaintiff or defendant or their representative in civil or administrative proceedings, the employee first needs to explain this. And release him from work in accordance with Art. 170 of the Labor Code of the Russian Federation, the employer is not obliged.
There are other options here as well. For example, an employee can be granted leave without pay.
In addition to the summons, many employers request employees to submit a statement of release from work. Despite the fact that such a document is not provided for by the Labor Code, we believe that it would be useful. The obligation to present it can be established by local regulations.
An employee’s absence from work in connection with the performance of state duties should be noted in the work time sheet with the letter code “G” or the digital code “23” (absence from work while performing state or public duties according to the law).
Compensation for the performance of state or public duties.
According to the general rule provided for in Part 2 of Art. 170 of the Labor Code of the Russian Federation, a state body or public association that has engaged an employee to perform state or public duties, pays him compensation for the period of performance of these duties in the amount determined by the Labor Code, other federal laws and other regulatory legal acts or a decision of the relevant public association.
At the same time, the Labor Code for the performance of certain duties does not establish the payment of compensation, but the retention of average earnings for the employee, in particular, for persons participating in collective bargaining (Article 39), members of labor dispute commissions (Article 171), donors (Article 186), members of conciliation commissions and labor arbitrators (Article 405).
But the procedure for paying for the participation in the work of trade unions of members of their elected collegial bodies who are not exempt from their main work is determined by a collective agreement or agreement (Article 374 of the Labor Code of the Russian Federation).
For your information:
The average earnings of trade union members released from their main jobs are maintained by the all-Russian (interregional) trade union. It is retained for the period of employment (no more than six months) of the trade union worker, if at the end of his term of office the employer was unable to provide him with his previous place of work (Article 375 of the Labor Code of the Russian Federation).
The employer must also retain the average salary for employees undergoing military training (Article 6 of the Federal Law of March 28, 1998 No. 53-FZ “On Military Duty and Military Service”). In addition, they are compensated for other expenses, for example, those associated with renting housing, travel expenses, and business trips.
However, subsequently all these expenses are reimbursed to the employer by the Ministry of Defense[1].
In other cases of performance of state and public duties, the employee receives compensation from government bodies or public associations that involved him in the performance of such duties.
* * *
So, if an employee has submitted a subpoena to the court, the prosecutor's office, the tax inspectorate, the body of inquiry or investigation, by which he is summoned as part of the consideration of a criminal, civil, administrative or arbitration case as a witness, victim (their representative), expert, specialist, translator, witness , a juror or arbitration assessor, the employer is obliged to release him from work for the period specified in the summons. Otherwise, the employer may be subject to administrative liability. If, among other things, the employee who left his job is fired for absenteeism or is subject to disciplinary action, he may have to prepare for legal proceedings.
At the same time, the employer must retain for the employee not only his place of work, but also (in some cases) average earnings, in particular if the employee is a witness in cases considered in the arbitration court and the tax inspectorate, and an arbitration assessor.
If an employee was on vacation while performing state duties, in accordance with Art. 124 of the Labor Code of the Russian Federation, he will need to extend his vacation.
[1] Rules for compensation of expenses incurred by organizations and citizens of the Russian Federation in connection with the implementation of the Federal Law “On Military Duty and Military Service,” approved. Decree of the Government of the Russian Federation dated December 1, 2004 No. 704.
Remuneration in a state (municipal) institution: accounting and taxation, No. 11, 2021
The employee received a summons.
First, let's figure out what cases and where an employee can be summoned. These can be civil, administrative and criminal cases. All of them are considered by courts of general jurisdiction. Arbitration courts hear disputes in the field of business and other economic activities.
There are also tax offenses that are considered by tax inspectorates. Accordingly, the employee may be summoned to a court of general jurisdiction or an arbitration court, or the tax office.
In addition, he can be called by the bodies of inquiry, investigative bodies and the prosecutor's office. It should be noted here: in order to qualify such calls as the performance of public duties, the employee must have a certain status. Thus, guided by the norms of the Civil Procedure Code, when considering civil cases, an employee can act as:
- parties (plaintiff or defendant);
- witness;
- juror;
- specialist, expert, translator.
In accordance with the Code of Administrative Procedure, when considering administrative cases, an employee may be:
- party (administrative plaintiff or administrative defendant);
- witness;
- specialist, expert, translator.
Finally, when considering criminal cases, by virtue of the provisions of the Code of Criminal Procedure, an employee may be:
- the victim (his legal representative);
- the accused;
- civil plaintiff;
- witness;
- attested;
- specialist, expert, translator.
An employee can be summoned to an arbitration court as a witness, specialist, expert, translator, as well as an arbitration assessor.
However, not all of these statuses give the employee the right to receive guarantees in accordance with Art. 170 Labor Code of the Russian Federation. In particular, participation in legal proceedings as a plaintiff or defendant and, of course, as an accused is not considered to be the performance of public duties by an employee. For everyone else, such an obligation is established regardless of what process (civil, administrative or criminal) the proceedings take place.
Guided by the provisions of the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, the Tax Code of the Russian Federation, the Code of Criminal Procedure of the Russian Federation and other federal laws and regulations, the employee performs state duties if he is summoned to court, the tax inspectorate, inquiry bodies, investigative bodies and the prosecutor's office as a witness or specialist , expert, translator, victim (his legal representative), attesting witness, and also if he serves as a juror or arbitrator.
For your information:
The bodies of inquiry include internal affairs bodies, police departments (divisions, divisions, points), FSSP bodies, fire inspection bodies (Article 40 of the Code of Criminal Procedure of the Russian Federation).
