The Right of a Witness to Remain Silent During Questioning at the Pre-Trial Investigation Stage

Author: Yaroslav Naumets, Paralegal at Grain Law Firm

Chapter 20 of the Criminal Procedure Code of Ukraine establishes an exhaustive list of investigative (search) actions that an inquiry officer, investigator, prosecutor, or, upon their instruction, operational units may carry out during pre-trial investigation where the relevant legal grounds exist.

Pursuant to Part 1 of Article 223 of the Criminal Procedure Code of Ukraine, investigative (search) actions are measures aimed at obtaining (collecting) evidence or verifying evidence already obtained in a specific criminal proceeding.

Among all investigative (search) actions, questioning remains the most common. Even within a single criminal proceeding, dozens or even hundreds of interviews may be conducted depending on the scale and complexity of the case. At the same time, the circle of persons whom the prosecution considers appropriate to question is determined solely at its own discretion and based on its internal conviction.

Moreover, the law does not establish any limitation on the number of times the same witness may be questioned, which in practice creates the risk of transforming questioning from a procedural tool for gathering evidence into an instrument of unlawful pressure.

For this reason, the issue of a witness exercising the right to remain silent during pre-trial investigation with respect to themselves, their close relatives, or family members remains highly relevant and often controversial in practice, particularly given the risks associated with an unlawful refusal to testify in criminal proceedings.

Accordingly, pursuant to Part 1 of Article 65 of the Criminal Procedure Code of Ukraine, a witness is an individual who knows or may know circumstances subject to proof in criminal proceedings and who has been summoned to provide testimony.

At the same time, the procedural status of a witness grants a person a number of rights and obligations established under Article 66 of the Criminal Procedure Code of Ukraine. In the context of the right to remain silent, the following rights are of particular importance:

• to know the reasons for and the criminal proceedings within which the questioning is conducted;
• to use legal assistance from a lawyer while giving testimony and participating in other procedural actions;
• to refuse to testify against themselves, their close relatives, or family members if such testimony may become grounds for suspicion or accusation of a criminal offence committed by the witness, their close relatives, or family members.

At the same time, the statutory obligations of a witness include the duty to:

• appear upon summons before an investigator, prosecutor, investigating judge, or court;
• provide truthful testimony during pre-trial investigation and trial proceedings.

Under Part 3 of Article 224 of the Criminal Procedure Code of Ukraine, a witness must be warned of criminal liability for refusal to testify (Article 385 of the Criminal Code of Ukraine) and for knowingly giving false testimony (Article 384 of the Criminal Code of Ukraine). Therefore, a witness is generally obliged to provide truthful testimony during the pre-trial investigation, and refusal to do so may result in criminal liability. However, the witness is also vested with the right to refuse to testify in certain circumstances.

In practice, this means that a person, independently or with the assistance of legal counsel during questioning, must:

• identify those questions posed by the investigator or prosecutor, answers to which may give rise to suspicion against themselves or their close relatives regarding the commission of a criminal offence, and may lawfully refuse to answer such questions;
• ensure that exercising the right to remain silent does not amount to the criminal offence предусмотренного Part 1 of Article 385 of the Criminal Code of Ukraine.

Accordingly, for the lawful exercise of the right to remain silent, it is important — based on a systematic interpretation of Ukrainian legislation — to distinguish between lawful refusal to testify and criminally punishable refusal.

Pursuant to Parts 1 and 2 of Article 84 of the Criminal Procedure Code of Ukraine, evidence in criminal proceedings consists of factual data obtained in accordance with the procedure established by the Code, on the basis of which the investigator, prosecutor, investigating judge, and court determine the existence or absence of facts and circumstances relevant to the criminal proceedings and subject to proof. Procedural sources of evidence include, inter alia, witness testimony.

According to Part 1 of Article 85 of the Criminal Procedure Code of Ukraine, admissible evidence is evidence that directly or indirectly confirms the existence or absence of circumstances subject to proof in criminal proceedings and other circumstances relevant to the proceedings, as well as the reliability or unreliability of such circumstances and the possibility or impossibility of using other evidence.

Article 91 of the Criminal Procedure Code of Ukraine further specifies which circumstances are subject to proof, ranging from the event of the criminal offence itself to guilt, motive, intent, damages, as well as circumstances affecting punishment or release from liability.

Thus, witness testimony constitutes a source of evidence confirming the existence or absence of circumstances subject to proof in specific criminal proceedings, including, inter alia, the occurrence of a criminal offence, the guilt of a person, and the infliction of damage.

At the same time, the right to remain silent is an integral component of the right to a fair trial guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as repeatedly emphasized by the European Court of Human Rights in its case law.

Ukrainian national legislation contains a number of provisions safeguarding an individual’s right to refuse to provide testimony or explanations against themselves, their family members, or close relatives without incurring criminal liability. These include, in particular, Article 63 of the Constitution of Ukraine, Article 18 of the Criminal Procedure Code of Ukraine, and Part 2 of Article 385 of the Criminal Code of Ukraine.

The category of close relatives and family members includes: husband, wife, father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, brother, sister, grandfather, grandmother, great-grandfather, great-grandmother, grandson, granddaughter, great-grandson, great-granddaughter, adoptive parent or adopted child, guardian or custodian, a person under guardianship or custody, as well as persons living together, sharing a common household, and having mutual rights and obligations, including persons cohabiting without being married (Paragraph 1, Part 1, Article 3 of the Criminal Procedure Code of Ukraine).

Therefore, the systematic legislative consolidation of these provisions demonstrates that the right to remain silent in criminal proceedings — according to which a person bears no liability for refusing to testify against themselves, their family members, or close relatives — is fundamental in nature and cannot be undermined through abuse or procedural manipulation by the prosecution.

At the same time, since witness questioning is aimed at obtaining or verifying evidence already collected by the prosecution, this indicates that the right to remain silent is not absolute. For its lawful exercise, a number of important factors must be taken into account, including:

• the subjective scope, namely whether the relevant information concerns the witness personally or their close relatives and family members;
• the subject matter of proof, since the right to refuse testimony applies not to any circumstances involving the witness or their relatives, but only to those of an incriminating nature that form part of the subject matter of proof in the specific criminal proceedings in which the person is questioned as a witness.

Judicial practice likewise proceeds from the understanding that witness immunity from testifying applies to a specific category of persons and extends only to information of an incriminating nature that may be used against the interests of such a person, their family members, or close relatives (Judgment of the Ternopil City District Court of Ternopil Region dated 26 April 2021 in case No. 607/12163/20).

Furthermore, the above court decision demonstrates that the witness was prosecuted under Article 385 of the Criminal Code of Ukraine only after the third questioning within the same criminal proceedings, despite the fact that during the previous two interviews the witness had already expressed their position regarding the circumstances under investigation.

Thus, the above conclusions concerning the application of witness immunity during questioning to a specific category of persons and to the subject matter of proof (information of an incriminating nature within a specific criminal proceeding) have also been confirmed in judicial practice. At the same time, there is a recurring practice of repeatedly questioning the same individual and subsequently prosecuting them for refusal to testify.

Conclusions

A witness’s comprehensive awareness of their rights and obligations is the key to the safe and lawful exercise of the right to remain silent. However, in order to ensure the effectiveness and practical enforceability of such constitutional guarantees, we believe it would be appropriate to amend Ukrainian criminal procedural legislation by introducing an obligation for the inquiry officer, investigator, or prosecutor, in the event of each subsequent summons of the same witness who has exercised the right to remain silent, to justify and substantiate the need for an additional questioning through a reasoned written resolution. Such a resolution should be subject to appeal by the individual or their lawyer (representative) before an investigating judge in accordance with the procedure established by Article 303 of the Criminal Procedure Code of Ukraine.

Implementation of such amendments would enhance procedural fairness, minimize the risks of abuse during pre-trial investigation, and ensure genuine protection of a witness’s right to remain silent.