Recently I got the chance to attend a round table discussion at the Moscow Regional Chamber of Advocates (APMO). The speakers included the head of the Disciplinary Commission in Moscow, several other prominent advocates, and the resident DOJ legal advisor from the US Embassy. The topic was Article 51 of the Russian Constitution and the related issues that have developed throughout the country. ABA deals a lot with APMO, and the larger Moscow Chamber of Advocates (APM), on the topic of the professional code of ethics. APMO and APM handle disciplinary proceedings against advocates who have violated the Russian code of ethics (which applies only to advocates and not to regular lawyers, see previous blog posts).
Article 51 can be compared to the 5th Amendment and the Miranda warning in the US. It states:
1. "No one shall be obliged to testify against himself or herself, or against his or her spouse and close relatives as specified by federal law. 2. "Federal law may establish other exemptions from the duty to give testimony"
Listening to the panel, I drew some basic conclusions. The right to refrain from incriminating yourself underlies this Article, as it does in the US. However, as you can see from the text, the right further extends to spouses and close relatives. Although I have not yet taken Criminal Procedure, I understand that there is a similar spousal exception in the US. However, the exception does not extend to close relatives. According to Russian law, no person, spouse, or close relative invoking art. 51 will be held criminally liable. Further, in cases where prosecution and the court have evidence that close relatives are involved in the crime of the accused, they cannot force them to admit guilt or to testify, period.
Another interesting example brought up by one of the panelist was that of admissibility of testimony that was originally obtained legally from a spouse or close relatives. Once obtained, it can be referenced in court. However, art. 51 prohibits further questioning of the spouse or close relative by the opposing side, as this would be a violation of right to remain silent. Thus, the testimony is essentially frozen and there can be no further clarification. I'm not sure what similarities, if any, exist in the US...but I'm looking forward to finding out.
One case mentioned by a panelist-advocate was that of an illegal timeshare scheme. A company scammed multiple people into purchasing fake timeshares. The advocate said that his client was a very minor employee in the company who had refused to testify against herself. Her job consisted of showing the potential "customers" pictures/videos of the various destinations. At that point when the advocate began to represent her, she had already been in custody for three months. The advocate asked her why she refused to testify if her role was rather minor and would likely remove her from the case. She said that she didn't know why and decided to testify after all, revealing her job description and positions held by others. However, the prosecution, while happy to receive this new information, could no longer remove her from the case because she was "too involved" by that point. Thus, the following questions remain unanswered: When should a witness invoke his art. 51 right and when is it in their interest to just spill the beans? How should their lawyer advise them in this case? The speaker's insisted that a lawyer must never tell his client what to do or not do, but must inform him or her of all of the likely consequences and let them decide.
It was also discussed at the round table that the Russian Constitutional Court recently held that secretly taped testimony (recorded in person) was sometimes admissible in court and could not be compared to the illegal practice of wiretapping. All of the lawyers present at the round table agreed that this was a terrible decision and that any secret taping of testimony was a violation of one's private life and should never be admissible. Everyone should have the right to know that they are being questioned, why they are being questioned and by whom.
Vsego nailuchsego (all the best),
P.S. Next blog will be about some of my non-work related experiences. I recently visited my relatives in a small village outside Moscow and have gone out to some pretty interesting events. Plus, next week I'll get to attend a criminal trial of a St. Petersburg gang leader!