Допрос священнослужителя в доказательственном судебном процессе

Priest Vitaly Kollantay; Priest Petr Kopystko

doi:10.21638/spbu28.2022.207

Authors

Priest Vitaly Kollantay Tomsk Orthodox Theological Seminary, 82, pr. Lenina, Tomsk, 634009, Russian Federation; Tomsk State Pedagogical University, 60, ul. Kievskaya, Tomsk, 634061, Russian Federation
Priest Petr Kopystko St Petersburg Metropolia, Church of the Miraculous Icon of the Mother of God “Joy to All the Sorrowing”, 24, pr. Obukhovskoi Oborony, St Petersburg, 192019, Russian Federation

DOI:

https://doi.org/10.21638/spbu28.2022.207

Abstract

The article presents results of an analysis of current legislation of the Russian Federation and the Church law of the Russian Orthodox Church on the legal status of a “clergyman” and their opportunity to testify in criminal proceedings. Taking into account different points of view on this issue, it is substantiated that a clergyman of the Russian Orthodox Church cannot be interrogated as a witness in a criminal case about the circumstances that became known to him during the Sacrament of Penance. The question of the ratio of the concepts of “clergyman” and “priest” fixed at the normative level, but not equal, a pedibus usque ad caput, in essence, is considered. It is indicated that according to the canonical law of the Orthodox Church, the concept of “clergyman” is broader, with its own characteristics, which are dictated by the purpose of a particular degree of priesthood. In the article, the category of witness immunity is considered from the position of its functional orientation. An attempt has been made to substantiate the legal and moral aspects of the right to legal immunity of clergy. An attempt has been made to substantiate the legal and moral aspects of the right to legal immunity of a clergyman, through understanding the impossibility of conducting an interrogation, since this restriction of the subject of testimony is explained by the priority of social values that are protected by the provision of the law.

Keywords:

clergyman, secret of confession, legal immunity, interrogation, sacrament of penance, trial, investigative action

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References

References

Bulatov B. B., Baranov A. M., eds (2008) Criminal procedure. Moscow, Iurait Publ. (In Russian)

Frantsiforov Yu. V. (2007) Contradictions of criminal proceedings: PhD Thesis in Law. Nizhny Novgorod. Nizhegorodskii gosudarstvennyi universitet. (In Russian)

Khoborova K. R., Luk’yanchikova E. F. (2016) “Keeping the secret of confession by a clergyman: legal and professional issues”, in Sovremennye tendentsii razvitiia nauki i tekhniki, no. 12, part 7, pp. 134–139. (In Russian)

Kipnis N. M. (1995) Admissibility of evidence in criminal proceedings. Moscow, Iurist Publ. (In Russian)

Kondratenko V. A. (2004) Theory and practice of interrogation at the stage of preliminary investigation. PhD Thesis in Law. Moscow, Rossiiskaia tamozhennaia akademiia. (In Russian)

Korolev G. (1995) “The secret of confession in criminal proceedings”, in Rossiiskaia iustitsiia, no. 2, pp. 29–30. (In Russian)

Nikodim Svyatogorets, rev. (2019) Pidallion Rules of the Orthodox Church with Interpretations. In 4 vols, vol. 3. Yekaterinburg, Aleksandro-Nevskii Novo-Tikhvinskii zhenskii monastyr’ Publ. (In Russian)

Orlov Yu. K. (2009) Problems of the theory of evidence in criminal proceedings. Moscow, Iurist Publ. (In Russian)

Osodoyeva N. V. (2014) Conducting an interrogation during a judicial investigation in Russian criminal proceedings. PhD Thesis in Law. Yekaterinburg, Ural’skaia gosudarstvennaia iuridicheskaia akademiia. (In Russian)

Pchelintsev A. V. (2011) “Is the secret of confession absolute?”, in Zakonodatel’stvo i ekonomika, no. 5, pp. 58–61. (In Russian)

Ryzhakov A. P. (1996) Investigative actions and other methods of collecting evidence. Tula, Filin Publ. (In Russian)

Shmonin D. V. (2019) “Scientific rationality and ‘reduction to the theology’”, in Issues of Teology, vol. 1, no. 3, pp. 280–306. (In Russian)

Tat’yanin D., Zakirova L. (2011) “Problems of the secret of confession in the criminal process of Russia”, in Vestnik Orenburgskogo gosudarstvennogo universiteta, vol. 3 (122), pp. 140–142. (In Russian)

Yevseyenko V. E. (2014) “The secret of confession in Russian criminal proceedings”, in Obshchestvo i pravo, no. 2 (48), pp. 188–193. (In Russian)

Zolotykh V. V. (1999) Verification of the admissibility of evidence in criminal proceedings. Moscow, AST Publ. (In Russian)