Concept and rules of conduct. Confrontation

The purpose of any criminal case is to identify the circumstances of the criminal act and, of course, the culprit of the crime. To identify the culprit, law enforcement agencies carry out investigative measures, including: interviewing witnesses, victims, visiting the scene of the incident, interrogating the suspect. One type of interrogation is a confrontation. This investigative action differs from a regular interrogation in that two persons are interrogated at the same time.

Concept and general characteristics

Confrontation is an opportunity for the investigator to eliminate contradictions arising as a result of unequal testimony of two persons participating in the case. The same actions, circumstances, events and facts relating to the case under investigation may be presented differently to victims, witnesses and perpetrators. Before transferring a case to court, the investigator is obliged to have a complete evidence base, and contradictions in the testimony make it impossible to accurately determine the guilty person, the motives for committing the crime and the means used for this.

And so, from all of the above, we can conclude that a confrontation is a simultaneous interrogation of two persons, carried out under the condition that there are significant contradictions in the testimony.

The reasons for the emergence of contradictions in the testimony are:

honest misrepresentation;
deliberate misrepresentation of facts.

In the first case, the interrogated person gives incorrect or untrue testimony due to incorrect perception of events, poor memorization or inaccurate reproduction. Deliberate distortion of facts is usually aimed at creating a false alibi for oneself, an opportunity to evade responsibility, etc.

Those interrogated at the confrontation:

accused;
suspect;
victim;
witness.

The paired combination of persons interrogated in a confrontation can be any, that is, two suspects, a suspect and a victim, a suspect and a witness, two witnesses, etc. can be interrogated at the same time.

The decision to conduct a confrontation is made by the investigator. A prerequisite for carrying out this investigative measure is the presence of contradictions related to important circumstances of the case. The confrontation is carried out on the basis of the investigator's decision. During this investigative action, all testimony of the interrogated persons is recorded.

Essential circumstances:

place where the crime was committed;
time of commission of the crime;
guilt of the accused;
method of committing a crime.

In some cases, a confrontation is carried out when there are contradictions in testimony that may affect the compilation of a profile of the accused or victim.

The confrontation is carried out after the interrogation of individuals separately, during which, when comparing their testimony, significant contradictions are revealed.

Confrontation refers to investigative actions and is carried out according to the general rules for such actions (Article 164 of the Code of Criminal Procedure of the Russian Federation). In addition, the regulation of confrontations is described in Art. 192 of the Code of Criminal Procedure of the Russian Federation. Based on these two articles, we will compile a complete list of rules for conducting confrontations.

Rules for confrontation

The procedure is carried out according to the following rules:

Participation in the confrontation of persons under 14 years of age obliges the investigator to involve a teacher in participation in it.
Participants must be warned of liability for knowingly giving false testimony or evading testimony. Participants are also explained their rights (no one is obliged to testify or testify against themselves, their close relatives and spouse - Article 51 of the Constitution of the Russian Federation).
Ensuring the presence of a legal representative, teacher, close relative for persons recognized as mentally retarded.
Participation in confrontation by a lawyer is allowed.
If necessary, the investigator has the right to involve in a confrontation an official of the body that carries out operational investigative activities in this case. An appropriate entry about this must be made in the protocol.
During the confrontation, a protocol is kept, which is subsequently signed by the persons participating in the interrogation (according to the current legislation, each page of the protocol is signed). The protocol can be kept using technical means and be drawn up in the form of a table divided into two parts to record the answers to the same question of the interrogated persons, or it can be drawn up as a full-line document in which the answers are recorded one by one.
During the confrontation, the interrogated may be presented with material evidence, testimony of other persons, and investigative materials. Presentation of such documents and evidence is possible only after the interrogated persons have given testimony or their refusal to testify.
The use of threats and violence in a confrontation is unacceptable.
Pressure from one of the interrogated persons on the other must be stopped.
The interrogated answer the investigator's questions one by one, and they can also ask each other questions regarding the case.
During a confrontation, its participants may submit petitions, which are entered into the protocol together with the investigator’s decisions on them.

According to Art. 192 of the Code of Criminal Procedure of the Russian Federation, the investigator at a confrontation must first find out whether the interrogated persons know each other, and in what relationship they are. Since the confrontation is carried out to clarify the actual circumstances of the case, the interrogation participants take turns giving evidence on the circumstances that need to be clarified.

Not only a suspect or accused, but also a witness or victim can invite a lawyer in criminal cases to provide legal assistance. In accordance with Art. 192 of the Code of Criminal Procedure of the Russian Federation, a criminal lawyer engaged by a participant in a confrontation enjoys all the rights that are provided for in Part 2 of Art. 53 of the Code of Criminal Procedure of the Russian Federation.

Help from a criminal lawyer in a confrontation consists of giving the interrogated person short consultations, submitting written comments regarding the completeness and correctness of the entries in the protocol. Also, a criminal defense lawyer can ask questions of both people being questioned. The participation of a human rights defender in a confrontation will protect the defendant from unlawful actions on the part of the investigation and the other person being interrogated.

Sincerely,

Criminal lawyer Victoria Demidova

Text of Article 192 of the Code of Criminal Procedure of the Russian Federation in the new edition.

1. If there are significant contradictions in the testimony of previously interrogated persons, the investigator has the right to conduct a confrontation. Confrontation is carried out in accordance with Article 164 of this Code.

2. The investigator finds out from the persons between whom the confrontation is being conducted whether they know each other and what kind of relationship they have with each other. The interrogated persons are asked one by one to testify on the circumstances to clarify which the confrontation is being conducted. After giving evidence, the investigator may ask questions to each of the interrogated persons. Persons between whom a confrontation is being conducted may, with the permission of the investigator, ask questions to each other.

3. During a confrontation, the investigator has the right to present material evidence and documents.

4. The announcement of the testimony of interrogated persons contained in the protocols of previous interrogations, as well as the reproduction of audio and (or) video recordings and filming of these testimonies are allowed only after the specified persons have given testimony or they have refused to testify at the confrontation.

5. In the protocol of the confrontation, the testimony of the interrogated persons is recorded in the order in which they were given. Each of the interrogated persons signs his testimony, each page of the protocol and the protocol as a whole.

6. If a witness comes to a confrontation with a lawyer invited by him to provide legal assistance, then the lawyer participates in the confrontation and enjoys the rights provided for in part two of Article 53 of this Code.

N 174-FZ, Code of Criminal Procedure of the Russian Federation, current edition.

Commentary to Art. 192 of the Criminal Procedure Code of the Russian Federation

Comments on the articles of the Code of Criminal Procedure will help you understand the nuances of criminal procedure law.

1. A confrontation is an interrogation in the presence of each other of two persons, each of whom was previously interrogated about the circumstances in respect of which they gave evidence in which there are significant contradictions.

2. Conducting a confrontation is conditioned by the presence in the testimony of these persons of significant contradictions that must be eliminated. The question of whether the identified contradictions are significant is decided by the person conducting the investigation, based on an assessment of the available evidence and its comparison with the testimony of the persons between whom a confrontation is proposed. It seems that contradictions in testimony containing contradictory information related to the circumstances included in the subject of proof in a criminal case (Articles 73, 421, 434 of the Code of Criminal Procedure), as well as evidence important for the correct assessment of evidence (for example, about the relationship of the accused with the victim, witnesses, etc.). Factual data obtained during interrogations of various persons regarding the behavior and actions of victims, witnesses, accused, suspects before and after the commission of the acts under investigation are often recognized as significantly contradictory.

3. Confrontations may be held between the accused, suspects, victims, witnesses, as well as between the accused and the suspect, the accused and the victim, the accused and the witness, the suspect and the victim, the suspect and the witness, the victim and the witness.

4. Confrontations are carried out by decision of the investigator, inquiry officer, prosecutor. The suspect, the accused, his defense attorney, the victim or his representative may request a confrontation. A confrontation may be initiated by the head of the investigative department or the prosecutor, who has the right to give instructions to the investigator on the conduct of investigative actions.

5. Before conducting a confrontation, it is necessary to determine whether contradictory testimony is the result of an honest mistake. To do this, the investigator must help the interrogated to overcome the delusion (repeated interrogation with reminding, but not leading questions; presentation of material evidence and documents; conducting an investigative experiment, etc.).

6. When conducting a confrontation, if at least one of the interrogated is a minor, a teacher participates. The latter’s participation is mandatory if the person is under 14 years of age; optional (at the discretion of the investigator) - when interrogating a person aged 14 to 18 years. As with a regular interrogation, it is allowed to call the legal representative of a minor (see commentary to Articles 191, 426).

7. At the confrontation, with the permission of the investigator, an expert (Article 57 of the Code of Criminal Procedure), a defense lawyer (in cases provided for in paragraph 5 of Part 1 of Article 53), as well as an interpreter (Article 59 of the Code of Criminal Procedure), a lawyer (Part 6) may be present. Article 192).

8. Particular attention should be paid to the provisions of Part 6 of the commented article, which have recently been supplemented by this article. According to them, a lawyer invited by a witness to provide him with legal assistance during a confrontation is vested with procedural rights provided for in Part 2 of Art. 53 Code of Criminal Procedure.

9. Let us recall that in accordance with Part 2 of Art. 53, a lawyer assisting a witness during a confrontation has the right to give him brief consultations in the presence of the investigator, ask questions to the interrogated persons with the permission of the investigator, and make written comments regarding the correctness and completeness of the entries in the protocol of this investigative action. The investigator may dismiss the defense lawyer's questions, but is obliged to enter the dismissed questions into the protocol.

10. The investigator must find out from the persons being confronted whether they know each other and what kind of relationship they have with each other, even if he has established these circumstances in advance.

11. Before the confrontation begins, the witness and the victim must be explained their rights and obligations. In this case, as before the start of a regular interrogation, the victim and the witness must be warned by the investigator (interrogating officer) about the responsibility for refusing to give evidence and for giving knowingly false testimony (see commentary to Article 164). As during an interrogation, before the confrontation begins, the provisions of Part 1 of Art. 51 of the Constitution.

12. The sequence of interrogation of persons summoned to a confrontation is established by the person who conducts this investigative action. It also establishes the order of questions asked, taking into account the specific circumstances of the case.

Typically, in practice, investigators first offer testimony to those who, in their opinion, gave truthful testimony during the previous interrogation(s). This sequence is especially preferable if the investigator is not confident in the stability of the interrogated person and allows for the possibility of him changing his testimony under the influence of another participant in the confrontation. If it is necessary to resolve contradictions in testimony on several circumstances, it is advisable to invite each of the interrogated to testify first on one fact, then on another, etc.

13. When participants in a confrontation, with the permission of the investigator, ask questions to each other, the investigator remains an active participant in this investigative action - in particular, he can remove the questions asked in whole or in part. With a stage-by-stage or episode-by-episode method of conducting a confrontation, it is advisable to give the interrogated the opportunity to ask questions not only at the final moment of the interrogation, but also at each stage - after giving evidence about the circumstances being clarified. This makes it possible to intensify the participation of persons giving truthful testimony, helps to remind or clarify the circumstances of those who are in good faith mistaken, identifies new factual data, and serves as a means of exposing persons giving false testimony.

14. If there are attempts on the part of the accused or suspect to disrupt the investigative action through threats, intimidation against another participant or other unlawful actions, it is advisable to interrupt the confrontation, reflecting this in the protocol.

15. The conditions established by law for the disclosure of previously given testimony are aimed at limiting the influence of the investigator on persons who changed their testimony in a confrontation, as well as the influence of the testimony of one person on the testimony of another (BVS USSR. 1971. No. 2. P. 41). The disclosure of evidence contained in previous interrogations is unacceptable if someone refuses to testify in a confrontation. In this case, it is more correct to postpone the confrontation or refuse to conduct it.

16. The results of the confrontation may be different: a) each participant confirmed his testimony; b) a person who previously gave false testimony has changed it and gives fully or partially truthful testimony; c) a person who previously gave truthful testimony gives false testimony; d) one of the participants in the confrontation refused to testify; e) both participants in the confrontation refused to testify. Regardless of the result, the confrontation cannot be considered unreasonable, taking into account only its results. Even the most unfavorable outcome from the investigator’s point of view can serve as a reason to search for other means to eliminate contradictions, provide guidance on what to expect at a court hearing, and help intensify efforts to collect new evidence.

17. The entire course of the confrontation is recorded. The protocol indicates where, when, for what time, by whom and between whom it was carried out; if the participants in the confrontation are witnesses or victims, it is noted that they are warned of liability for giving knowingly false testimony, for refusing to give testimony; all persons present during the confrontation are named. Next, the testimony of the interrogated about the relationship, the investigator’s questions and the answers of the interrogated are recorded. The testimony of the interrogated persons is recorded in the protocol in the order in which they were given. In this case, not only the answer to the question is recorded, but also the justifications or objections that accompany it. If the interrogated are presented with material evidence or documents, this is also noted in the protocol (for a sample form of the protocol of confrontation, see Appendix 63 to Article 476).

18. Practice has developed two forms of confrontation protocol: one, in which questions and answers are written down on a line, observing the sequence of answers; the second, in which each page is divided into two equal parts by a vertical line and on one side the questions asked and the answers received by one person being interrogated are written down, and on the second - on the other. Each participant in the confrontation signs his testimony and each page of the protocol.

19. When conducting a confrontation, it is permissible to use sound recording, video recording, and filming.

The following commentary to Article 192 of the Code of Criminal Procedure of the Russian Federation

If you have questions regarding Art. 192 of the Code of Criminal Procedure, you can get legal advice.

1. A confrontation is a simultaneous interrogation of two persons whose testimony contains significant contradictions.

2. The reasons for such contradictions can be either an honest mistake or a conscious lie of one or both interrogated people.

3. The investigator must be completely objective and not demonstrate greater confidence in the testimony of a participant in the confrontation who, in his opinion, is truthful.

4. Participants in a confrontation can be a witness, a victim, a suspect, an accused, of which there are always two who give contradictory testimony. A confrontation is necessarily preceded by an interrogation of these persons, which reveals significant contradictions in their testimony. There should not be a confrontation before the interrogation.

5. It is mandatory to clarify at the beginning of the confrontation the fact of acquaintance and the nature of the relationship between the participants in the confrontation.

6. The confrontation procedure (one-by-one interrogation, posing questions to each) is adapted to clarify the causes of contradictions. This is also facilitated by the investigator giving each participant the opportunity to ask questions to each other.

7. The prohibition of announcing at a confrontation the previous testimony of its participants, playing their audio and video recordings before the testimony given at the confrontation is entered into the protocol, is intended to ensure the free giving of testimony at the confrontation, the inadmissibility of pressure on the participant who has changed previously given readings.

8. A witness may appear at a confrontation accompanied by a lawyer who has the rights specified in Part 2 of Art. 53 and part 5 of Art. 189 Code of Criminal Procedure.

3. During a confrontation, the investigator has the right to present material evidence and documents.

(Part six introduced by Federal Law dated July 4, 2003 N 92-FZ)

Commentary on Article 192

1. Confrontation (OC) is an alternate (simultaneous) interrogation of two previously interrogated persons whose testimony contains significant contradictions. The article does not indicate the number of interrogated persons, however, in relation to pre-trial proceedings, this is implied (see, for example, appendix 63 to article 476 of the Code of Criminal Procedure). The purpose of the OS is to clarify and, if possible, eliminate the causes of these contradictions, as well as eliminate the contradictions themselves.

2. The basis for conducting OS is the presence of significant contradictions in the testimony. The concept of “significant contradictions” is evaluative. The criterion for the materiality of contradictions is the significance of the testimony for establishing the circumstances to be proven. If the testimony differs in insignificant details, and these discrepancies themselves are predetermined by the peculiarities of subjective perception, then there are most likely no grounds for OS.

3. It does not contradict the meaning of the norm to conduct an OS in situations where one of the interrogated persons (suspect, accused) refused to testify, and the other (witness, victim) incriminates him. However, it appears that this conclusion does not apply to cases of refusal to testify by a witness or victim who has taken advantage of immunity.

4. There are no grounds for OS when the subject of the testimony of its potential participants does not coincide (they talk about different, non-overlapping events or their different fragments). In cases where a witness or suspect declares that they do not remember the events that took place, although according to the circumstances of the case they were participants or eyewitnesses, an OS can be conducted with them.

5. It is unacceptable and legally meaningless to produce OS for repeating coincident testimony for the purpose of their additional recording.

6. The investigator has no right not to respond to significant contradictions in testimony. Final decisions cannot be made on the basis of mutually exclusive evidence. Elimination of contradictions is carried out by various means, including the OS. Carrying out OS can be postponed until all other means are used; you can start with OS production and then use other means. If carrying out this investigative action is inappropriate for tactical reasons, and contradictions in the testimony remain, the investigator is obliged to issue a reasoned decision to refuse to produce OS.

7. It is unacceptable to substitute the OS for another investigative action - presentation for identification. Recognition is also possible in the OS, but this is its accompanying result, and not a direct goal. The substitution of investigative action is discussed in cases where the concept of “significant contradictions” is deliberately interpreted too broadly.

8. The subjects of the OS are the witness, the victim, the suspect, the accused. OS can be performed on these subjects in any combination. All those subjects of the process who are allowed to interrogate can also participate in this investigative action.

9. According to its essential characteristics, OS is a type of interrogation. Evidence is the testimony obtained during the trial. Therefore, witnesses and victims participating in the OS should be warned about criminal liability for refusing to testify and for giving knowingly false testimony. All OS participants (including suspects and accused) are explained the right not to testify against themselves, their spouses and close relatives. On this, see also paragraph 3 of the comment. to Art. 190.

10. The OS protocol is drawn up in accordance with the appendix. 63 to Art. 476 Code of Criminal Procedure. The evidence is the testimony contained therein.

3. During a confrontation, the investigator has the right to present material evidence and documents.

Commentary on Article 192 of the Code of Criminal Procedure of the Russian Federation

1. The commented article determines the procedure for conducting confrontations. This investigative action is a simultaneous interrogation of two previously interrogated persons, in whose testimony there are significant contradictions. The goals of the confrontation are to eliminate these contradictions, verify existing ones, and collect new evidence.

2. The significance of the contradictions is an assessment category. At the same time, the investigator, assessing the degree of inconsistency of testimony, must use as the main criterion such a sign of evidence as its relevance to the criminal case (Part 1 of Article 88 of the Code of Criminal Procedure of the Russian Federation).

3. During the confrontation, the general rules for conducting investigative actions must be observed (Article 164 of the Code of Criminal Procedure of the Russian Federation).

4. Clarification of the issue of relations between the participants in the confrontation is necessary in order to avoid slandering one person by another. Therefore, the investigator must pay attention to what relationships existed between the persons previously, even before the reason for initiating a criminal case arose.

5. The content of the confrontation is that the investigator one by one asks questions to the interrogated persons, listens to their answers and records the progress and results of the investigative action in the protocol. The investigator has the right to put questions to one participant in the confrontation, or to both at the same time. Also, the investigator, at his own discretion, establishes the order of questions and answers to them.

6. With the permission of the investigator, participants in the confrontation have the right to ask questions to each other. If the question is not related to the criminal case under investigation, then the investigator has the right to dismiss it. But the protocol of the confrontation records all questions, including those dismissed.

7. According to parts 3–4 of the commented article, during a confrontation, the investigator may present previously collected evidence. In this case, material evidence and documents are presented at any time during the investigative action, and the reading of the testimony of the participants in the confrontation, which they gave earlier, can only take place after these persons testify at the confrontation or after they refuse to testify. Previously, these testimonies could be disclosed either in full or in part. However, their distortion or use in a different context is not permitted.

8. During a confrontation, the announcement of the testimony of other persons other than the participants in this investigative action is illegal and entails the recognition of the collected evidence as inadmissible.

9. The protocol of the confrontation is drawn up in compliance with the general rules established by Art. 166–167 Code of Criminal Procedure of the Russian Federation.

10. Since both persons give testimony during a confrontation, each of them signs their testimony separately, i.e. after each question, as well as each page of the protocol and the protocol as a whole. If necessary, the investigator must explain to the participants in the confrontation that by their signatures they only certify the fact that they have familiarized themselves with their testimony and the correctness of their recording, and do not confirm their agreement with the testimony of another person.

11. Before signing the protocol as a whole, the person makes a note about whether he has any statements, complaints and petitions, and if so, indicates which ones.

Another comment to Art. 192 Code of Criminal Procedure of the Russian Federation

1. A confrontation is an independent investigative action, during which measures are taken to eliminate (explain the reasons for) significant contradictions in the testimony of persons interrogated earlier during the preliminary investigation. As a result of the confrontation, evidence is formed such as a protocol of the investigative action - a protocol of the confrontation (and not a protocol of interrogation), as well as testimony of a witness, victim, etc. (there are always more of them than during interrogation).

2. The actual basis for a confrontation is the presence of significant contradictions in the testimony of previously interrogated persons.

3. The decision to conduct a confrontation made by the preliminary investigation body is not documented in writing.

4. The purpose of the confrontation is to obtain testimony from one person in the presence of another interrogated person giving other testimony significant for the preliminary investigation, as well as to clarify the reasons for significant contradictions in the testimony of previously interrogated persons.

5. Part 1 art. 192 of the Code of Criminal Procedure established two provisions:
- basic conditions under which a confrontation is possible;
- requirement that it be carried out in accordance with the general rules for conducting investigative actions.

6. A mandatory condition for conducting a confrontation is that the persons between whom it is being conducted must be interrogated before this. It doesn't matter how many times they were interrogated. But the content of the information contained in the interrogation protocol is important. The information coming from each of the participants in the confrontation must, firstly, be different, and secondly, it must indicate that there are significant contradictions between their testimony.

7. Any and all contradictions in the testimony of interrogated persons that can be interpreted by the head of the investigative body, prosecutor, judge or court as such (material), that is, affecting the completeness, comprehensiveness and objectivity of establishing the circumstances to be proven, should be considered significant.

8. The reasons for such contradictions can be either an honest mistake or a conscious lie of one or more interrogated people.

________________
See: Commentary on the Criminal Procedure Code of the Russian Federation... - M.: TK "Velby". - P.273.

9. In part 2 c.s. the mandatory first question is established, as well as who asks subsequent questions and in what order. Established part 2 c.s. the sequence must not be violated, otherwise the admissibility of the investigative protocol obtained as a result of the confrontation may be called into question.

10. Based on the content of Part 2 of the Code, it is first “found out” whether the persons between whom the confrontation is taking place know each other and what kind of relationship they have with each other. In part 2 c.s. The question of what form such clarification should take has not been settled. Therefore, any form of clarification of this issue from the interrogated persons used by the investigator (interrogating officer, etc.) that does not contradict the law will be acceptable. Usually the question is asked by the investigator (interrogating officer, etc.) orally. Although, of course, it can be entered into the protocol and then read independently by each of the interrogated persons. In any case, both the question and the answer of each person interrogated during the confrontation are reflected in the protocol of the confrontation.

11. The first part of the question asked is aimed at finding out whether they “know” each other. The verb “knows” in this case is understood in the broadest sense of the word. It is not necessary that the interrogated person indicate the last name, first name and patronymic (other personal data) of the second participant in the confrontation. It is enough for it to report when, under what circumstances and where exactly it saw him.

12. However, the fact that the participants did not previously know each other cannot be considered a circumstance preventing the conduct of a confrontation. An example to support such a statement would be a case where several people observed the same event from different places. In this case, they may not have seen each other and, accordingly, may not be familiar. In the testimony of such previously interrogated persons, significant contradictions may be revealed that require the adoption of measures provided for by law to eliminate them, which means that there are factual grounds for holding a confrontation between them.

13. In the first question, the persons being confronted are asked “in what relationship” they “are with each other.” And in this case, it is not necessary that there be any relationship between the interrogated persons. But if there were any, then they should be recorded in detail in the protocol. Particular attention should be paid to that side of this issue that concerns the existence of previous conflicts, property disputes and other manifestations of hostile relations between the interrogated persons. In this regard, after the interrogated person has provided his answer to the first question, from which it follows that the persons between whom the confrontation is being conducted have at least met before, it is recommended to clarify whether there are (previously) hostile relations between them.

14. The form of the question, whether the persons between whom the confrontation is being conducted know each other and in what relationship they are, leads in practice to the fact that investigators (interrogators, etc.) sometimes confuse two investigative actions - confrontation and presentation of a person for identification . Illegal mixing of these investigative actions can also be carried out intentionally. By asking at the beginning of the investigative action the question whether people know each other, in reality the law enforcement officer may seek to establish whether this person was seen by a witness (victim, etc.) under certain circumstances. This practice is rightly condemned by both scientists and the majority of practitioners. Defenders dispute the admissibility of records of such investigative actions.

________________
See, for example: Commentary on the Criminal Procedure Code of the Russian Federation... - M.: Yurait-Izdat. - P.462; and etc.

15. Persons being interrogated are “invited” to testify. This formulation should direct the investigator (interrogator, etc.) to take active action.

16. Immediately after the first person interrogated has completed his testimony, it must be recorded in the protocol of the confrontation and the interrogated person must be invited to sign it. Only after this should the second interrogated person be asked to testify about the circumstances to clarify which the confrontation is being conducted. The testimony of the second participant in the confrontation is also entered into the protocol and signed by him.

17. Only after completing the specified stage of the confrontation, the investigator (interrogating officer, etc.) “may” ask questions to each of the interrogated persons. In other words, firstly, before each of the interrogated persons is asked to testify on the circumstances to clarify which the confrontation is being conducted, the investigator (interrogating officer, etc.) has the right to find out from them only whether they know each other and in what ways relationships are with each other. Secondly, asking questions by the investigator (interrogating officer, etc.) to the persons being interrogated is not his duty, but his right.

18. Regardless of whether or not the investigator (interrogating officer, etc.) exercised his right to ask the interrogated persons questions, after this the stage of confrontation begins, when the persons between whom the confrontation is being conducted have the right to ask the investigator (interrogating officer, etc. ) permission to pose your question to another interrogated person.

19. The Code of Criminal Procedure does not determine how this type of permission is sought. Therefore, both an oral appeal to the investigator (interrogating officer, etc.) with an appropriate request, and an official statement of the corresponding petition will be legal. In any case, it is recommended that the fact of receiving such permission be reflected in the protocol of the confrontation. If a petition was submitted in writing, it is attached to the materials of the criminal case (Part 1 of Article 120 of the Code of Criminal Procedure).

20. The protocol of the confrontation records both questions and answers. Moreover, if the answer took place, it must be recorded immediately after the question itself is recorded in the investigative protocol.

21. Blocks of information consisting of a question and an answer to this question are recorded in the protocol of the confrontation in the sequence that took place during the investigative action in question. This requirement applies only to questions and answers regarding the testimony of the person being questioned. During the confrontation process, the interrogated person and other participants in the investigative action are asked other types of questions.

22. These questions are procedural guarantees of compliance with the legal status of the person being interrogated (other participants in the production of the investigative action under consideration). We are talking about such questions, for example: does the content of the announced protocol of the confrontation correspond to its progress and results, do the participants in the investigative action have comments and (or) additions to the protocol of the confrontation, etc. The legislator does not require that such issues be recorded in the procedural document under consideration. The protocol of the confrontation reflects only the answers to questions of the specified level. Moreover, it cannot be considered a violation of the law that the answer by the investigator (interrogating officer, etc.) to the type of question under consideration was reflected in the protocol not verbatim, but as it was printed on the form of the confrontation protocol.

23. In part 4 c.s. a mandatory condition is established, without which the investigator (interrogating officer, etc.) does not have the right to present to the persons between whom the confrontation is being conducted the testimony given by them earlier during the interrogation. The announcement (reproduction) of evidence previously given by persons interrogated at a confrontation is allowed only in two cases, when:
- at the confrontation, these persons have already spoken out about the circumstances, information about which will be announced (reproduced);
- the person whose testimony is being presented refused to testify in a confrontation about the circumstances that he spoke about during the previous interrogation.

24. In order for the investigator (inquirer, etc.) to have the opportunity to read out the testimony of the interrogated person contained in the protocol of the previous interrogation, as well as to reproduce audio and (or) video recordings and filming of these testimony, it is enough for him to have one of the above conditions. But he may not exercise this right. The investigator (interrogator, etc.) has no obligation to announce the testimony and (or) reproduce the results of audio and (or) video recordings or filming.

25. The legislator did not say anything about what “refusal to testify” is, in the meaning used in Part 4 of the Code. We recommend that refusal to testify be recognized as simply the silence (of significant duration) of the interrogated person after a question asked of him (an offer to testify about the circumstances to clarify which a confrontation is being held), and a statement that he refuses to answer the question put to him (to report something). or regarding the required circumstances). Nevertheless, the provision of unreliable or insufficient information, or even a deliberately false answer, cannot be considered a refusal to answer a question. In such a situation, the testimony of the interrogated still took place; accordingly, although not reliable (incomplete), there was an answer to the question. It must be reflected in the first person and, if possible, verbatim in the protocol of the confrontation.

26. Terms of confrontation:
1) confrontation can be carried out only after the initiation of a criminal case;
2) confrontation is carried out only between two persons;
3) the persons between whom the confrontation is taking place have been previously interrogated;
4) according to the content of the interrogation protocols, there are significant contradictions in the testimony of the participants in the confrontation;
5) persons interrogated in a confrontation are not asked leading questions;
6) it must be precisely established that during the confrontation, those rights and legitimate interests of the persons participating in it, the limitation of which is not provided for by the criminal procedure law, will not be violated;
7) the honor and dignity of the persons participating in the sought action will not be humiliated;
8) the health and life of the interrogated persons, as well as other persons present during the confrontation, will not be endangered.

27. The procedure for conducting a confrontation consists of a number of elements, which are arranged in the following sequence:
1) in connection with the existence of factual grounds and the possibility of complying with the conditions for conducting a confrontation, a decision is made on the necessity and possibility of carrying out this investigative action;
2) if necessary, a translator, teacher, defender, legal representative and other persons are invited, and technical means are prepared (tape recorder, video camera, etc.);
3) the person conducting the confrontation verifies the identity of the interrogated;
4) participants in the confrontation are notified of the sound recording (video recording) of the entire progress of this investigative action;
5) persons participating in the investigative action are explained their rights and obligations (if there is a need for this, they are warned about the non-disclosure of preliminary investigation data), responsibilities and the procedure for conducting a confrontation;
6) witnesses (victims) are warned of criminal liability for giving knowingly false testimony under Art. 307 of the Criminal Code and for refusing to testify under Art. 308 of the Criminal Code, translator - for knowingly false translation under Art. 307 of the Criminal Code. This fact is reflected at the beginning of the confrontation protocol and is certified by the signature of the witness (victim, interpreter);
7) each of the participants in the confrontation is asked by the investigator (interrogating officer, etc.) the same question, whether they know each other and in what relationship they are with each other;
8) the correctness of the reflection in the protocol of one’s answer to the question posed is certified by the signature of the person who gave the testimony;
9) those interrogated one by one in the sequence established by the investigator (interrogating officer, etc.) are asked to testify on the circumstances to clarify which the confrontation is being carried out;
10) each of the interrogated persons is asked additional questions if the investigator (interrogating officer, etc.) considers this appropriate;
11) persons between whom confrontations are made are given the opportunity, with the permission of the investigator (interrogating officer, etc.), to ask questions to each other;
12) subject to the above conditions, the interrogated persons may be asked questions by other participants in the confrontation;
13) all participants in the investigative action are given the opportunity to familiarize themselves with the content of the sound recording (video recording); if necessary, each of the interrogated persons has the right to make additions to it; but even if there are none, the interrogated persons are invited to complete the audio and video recordings with their oral statement about its correctness;
14) according to the rules of the c.s. and art. 166, 167 of the Code of Criminal Procedure, the protocol of the confrontation is finally drawn up.

28. See also commentary to Art. 53, 56, 72, 164, 166, 187-189, 191 Code of Criminal Procedure.

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For a more complete commentary on this article, see: Ryzhakov A.P. Confrontation. Presentation for identification. Checking evidence on the spot: grounds and procedure / A.P. Ryzhakov. - M.: Business and Service, 2013. - 192 p.

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Criminal Procedure Code, N 174-FZ | Art. 192 Code of Criminal Procedure of the Russian Federation

Article 192 of the Code of Criminal Procedure of the Russian Federation. Confrontation (current edition)

3. During a confrontation, the investigator has the right to present material evidence and documents.

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