Coercion of a participant in criminal proceedings to give testimony: the closed list of methods and the limits of criminal law protection

Problem. The paper examines the problem of the limits of criminal-law protection of the freedom to form and transmit evidentiary information when a participant in criminal proceedings is coerced into giving testimony (parts 2–4 of Article 309 of the Criminal Code of the Russian Federation). The relevance of the topic stems from the fact that the closed list of methods of coercion – blackmail, threat of murder, of bodily harm, or of destruction of or damage to property – leaves a significant part of the means of influence actually employed outside the scope of protection. Aim. To determine which of the limits established by the norm are justified by the essence of the protected good, and which constitute a defect of legislative technique. Methods. Using formal-legal, systemic, and comparative-legal methods, Article 302 and part 2 of
Article 309 of the Criminal Code of the Russian Federation are compared, and the legislation and judicial practice of Germany, Switzerland, France, Italy, Spain, England and Wales, the United States, Belarus, Kazakhstan, and Uzbekistan are analysed. Results. A double asymmetry of the named norms is established: official coercion is punishable regardless of the content of the testimony and is committed by any unlawful actions, whereas private coercion requires an orientation towards false testimony and is limited to four methods. It is substantiated that the authoritative position of the special subject explains the broader circle of victims and the indifference of the norm to the content of the testimony, but not the closed nature of the list of methods. Five groups of influences are identified that are not directly covered by the list, four of which require amendment of the law, and four models of legislative description of methods of coercion are distinguished. It is argued that the objection concerning legal uncertainty of an open formula is overcome by a limiting criterion rather than by the detail of the list. Conclusions. It is proposed to redefine the element of purpose by indicating  testimony of a specified content, to supplement the list of methods, and to extend the norm to influence out of revenge for testimony previously given.