“Is silence golden?”: The constitutionality of the refusal of a person who has entered into a pre-trial cooperation agreement to answer questions from the defense

This article examines the constitutionality of the refusal by a person who has entered into a pre-trial cooperation agreement to answer the defense’s questions in the course of judicial interrogation. Referring to the witness immunity provision of the Russian Constitution, courts deny the defense the opportunity to ask any questions of a person who has entered into a pre-trial cooperation agreement and who testifies against the defendant. At the same time, the refusal of this person to answer questions by the defense is not regarded as a refusal to testify and, accordingly, does not entail the consequences of non-compliance with the pre-trial cooperation agreement. The article critically analyzes the most recent practice of the Russian Constitutional Court on this issue. Unfortunately, the Constitutional Court does not consider the current approach to be unconstitutional. This article, however, argues that this approach deprives the defendant of guarantees against unfounded accusation and conviction and undermines the principles of adversarialness and equality of opposing sides in criminal proceedings. This is due to the fact that the participation of the defense in the judicial interrogation of a person who has entered into a pre-trial cooperation agreement is one of the key elements of the mechanism for refuting incriminating testimony since it is these questions that make it possible to detect inconsistencies and contradictions in that person’s testimony and to level the risks of concealing important details of the case. The defense should be given the right to ask questions because, by observing the emotional reaction of this person and his behavior in the process of answering, it is possible to determine the degree of reliability of his testimony. Based on the case law of the Russian Constitutional Court and the European Court of Human Rights, it is argued that the defendant’s right to examine a person who has entered into a pre-trial cooperation agreement should be enshrined in law, and this person’s refusal to answer the defense’s questions should lead to termination of the pre-trial cooperation agreement with him.