ST 294 of the Criminal Code of the Russian Federation.
1. Interference in any form with the activities of the court for the purpose of obstructing the administration of justice is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to two years. , or arrest for a term of up to six months, or imprisonment for a term of up to two years.
2. Interference in any form in the activities of a prosecutor, investigator or person conducting an inquiry, in order to impede a comprehensive, complete and objective investigation of the case, is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of the salary or other income of the person convicted of a period of up to six months, or compulsory work for a period of up to four hundred eighty hours, or arrest for a period of up to six months.
3. Acts provided for in parts one or two of this article, committed by a person using his official position, are punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to two years, or forced labor for a term of up to four years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to four years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.
Commentary to Art. 294 Criminal Code
1. The objective side is expressed in the form of actions to interfere in any form in the activities of the court (Part 1) or the prosecutor, investigator, person conducting the inquiry, persons conducting the investigation in the pre-trial stages of the criminal process (Part 2). In the first case, interference is carried out in the activities of a judge, a panel of judges, a juror, etc. Interference is exerting influence on specified persons in any form and in any way with the aim of achieving a certain decision or creating obstacles to a comprehensive, complete, objective investigation or resolution of the case. Intervention is possible direct and indirect; in oral, written and other forms. This could be persuasion, demands, threats (except for the threats provided for in Article 296 of the Criminal Code), blackmail, intrusion of a group of people into office premises, destruction of case materials, etc. Intervention may be associated both with proceedings in a specific case, and with obstruction of the activities of an objectionable person. These actions, committed by a person using his official position (Part 3), form a qualified crime.
Actions to fail to comply with a lawful order of a judge to stop actions that violate the rules established by the court; failure to take measures based on a private ruling of the court or on the proposal of a judge; obstructing the appearance of a people's or juror in court; failure to provide information for compiling lists of jurors; failure to comply with the legal requirements of the prosecutor, investigator, investigator or official carrying out proceedings in the case of an administrative offense are qualified according to a number of norms of Chapter. 17 Code of Administrative Offenses of the Russian Federation.
2. The crime is considered completed from the moment the specified actions are committed, regardless of the onset of consequences or the expected result of the intervention.
3. The subjective side is characterized by direct intent and special goals: obstruction of justice (Part 1), obstruction of a comprehensive, complete and objective investigation (Part 2), one of these goals (Part 3).
Obstruction of justice as a separate type of crime
The article for obstruction of justice is in the current Criminal Code under No. 294, and determines the penalties for this type of crime.
However, what can be called justice? Let's try to understand the basic definitions. The term “justice” is usually understood as a set of judicial activities aimed at maintaining the rule of law and the interests of citizens. The key tasks of the justice system are considered to be comprehensive and objective consideration of cases in compliance with all procedural norms and current legislation.
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Article 294 of the Criminal Code of the Russian Federation dated June 13, 1996 N 63-FZ (as amended on February 19, 2018)
On this basis, any actions aimed at changing a legal decision in a specific case can be considered interference in justice. This can be any form of negative influence: threats, blackmail, direct orders, promises of any material benefits. In addition to active actions, inaction can also be considered interference, for example, when a judge is deliberately delayed in providing housing or other required privileges.
In addition, obstruction can be considered attempts to influence the adoption of a fair decision by destroying material evidence or materials of the case under consideration, deliberate failure to serve subpoenas on participants in the process, and other similar actions.
Important! Pre-trial proceedings: collecting evidence, conducting inquiries and investigative activities are not considered justice. This is due to the fact that the results of the listed actions cannot influence the court’s decision when passing a sentence. However, interference in pre-trial actions is also considered a criminal offense under Article 294 of the Criminal Code of the Russian Federation.
Second commentary to Art. 294 of the Criminal Code of the Russian Federation
1. Interference covers any influence on judges, jurors or arbitration assessors (Part 1), which significantly violates the principles of legal proceedings enshrined in legislation, or on the activities of a prosecutor, investigator or person conducting an inquiry (inquirer), in order to impede comprehensive, complete and objective investigation of the case (part 2). Such influence can be exerted both directly and through third parties - relatives, acquaintances, colleagues, etc.
2. Crimes are considered completed from the moment of interference in the activities of these persons.
3. From the subjective side, crimes are characterized by direct intent. The law specifies their purpose - obstruction of the administration of justice (Part 1) or a comprehensive, complete and objective investigation (Part 2).
4. The subject of the crime is a person who has reached the age of 16 years.
5. In part 3 of Art. 294 of the Criminal Code specifies the use of one’s official position by a person as a qualifying sign of obstruction of both the administration of justice and the conduct of a preliminary investigation (see commentary to Articles 201 and 285 of the Criminal Code). Additional qualifications of his actions in such cases under Art. 285 or 201 of the Criminal Code is not required.
What constitutes a crime
The composition of such crimes is determined formally: the crime is considered committed immediately after the accused takes measures that could obstruct justice.
In this case, whether the attacker achieved the desired result or not no longer plays a decisive role: criminal liability arises in any case. However, the consequences that resulted from the illegal action will be taken into account when determining the punitive measure. For example, as a result of the intervention, an innocent person was illegally convicted, damage was caused to the property interests of citizens or harm to health. In these situations, penalties will be assigned based on the totality of the crimes under consideration.
Against this background, the justice system as a whole becomes the object of the crime, including the conduct of pre-trial investigative measures (Part 2 of the article in question). The personal interests of citizens can act as an additional object of crime, for example, if an illegal action caused any damage to a person’s life.
An objective characteristic of a crime is an action that interferes with the normal activities of the judiciary and investigative authorities. This is usually expressed in an attempt to change the decision in favor of the accused or obstruction of an objective decision.
Important! Cassation appeals, petitions, citing various formulations of a possible decision or making requests for the administration of justice do not constitute a crime under Article 294 of the Criminal Code of the Russian Federation. However, if an oral/written request is combined with any forms of material gratitude, the actions may have a criminal component.
Risk of losing a procedural document
September 23, 2022 4:53 pm
They want to prosecute a Sakhalin lawyer because of a torn protocol
AG learned , a criminal case was opened against the lawyer of the Sakhalin Bar Chamber (SAP) Alexander Kuleshov under Part 2 of Art. 294 of the Criminal Code of the Russian Federation “Obstruction of the administration of justice and the conduct of a preliminary investigation.” According to investigators, the defense lawyer tore up the protocol of the interrogation of the accused, who confessed to committing the incriminated crime, after the end of the investigative action. In turn, the lawyer denies the version of law enforcement officers and claims a violation of his own professional rights in the course of providing qualified legal assistance to his client. SAPO President Maxim Belyanin said that the chamber will provide all possible assistance to the lawyer within the framework of measures permitted by the criminal procedural law.
Incident according to lawyer
As Alexander Kuleshov told AG, on December 28, 2022, he was appointed as a defense attorney for citizen of Uzbekistan K., accused of facilitating terrorist activities, in whose criminal case two defense attorneys had already been replaced. Having called one of his predecessors, the lawyer learned that the investigator had a long conversation with the client in private, persuading him to give a confession.
According to the lawyer, after joining the case, he expressed his intention to familiarize himself with its materials, which caused indignation among the senior investigator of the investigative department of the FSB Directorate for the Sakhalin Region, Igor Erdniev, who initially refused to provide the requested documents. On January 23, Alexander Kuleshov reported, he received a resolution from the investigator to satisfy his request to familiarize himself with the materials of the criminal case. At the same time, the investigator invited him to participate in the interrogation of the accused, which was scheduled for January 24, but the lawyer objected that he could not participate in this investigative action without knowing the details of the criminal case.
On the day of the interrogation, Alexander Kuleshov met with K., who spoke about what he was accused of and said that he had been promised that the punishment would be minimal if he confessed to anything. According to the lawyer, Igor Erdniev listened to the entire conversation, and in response to the remark about the illegality of this, he replied that he could appeal his actions.
During the interrogation of the accused, in which translator I. took part, as Alexander Kuleshov explained, the investigator did not allow him to use a voice recorder, despite objections about the illegality of such a ban. According to the defense lawyer, the investigative action itself lasted no more than 5 minutes and resembled a re-enactment, during which K. read some text from a piece of paper, the translator allegedly translated, and the investigator did not fill out the interrogation report, but was busy with other matters.
After the interrogation ended, Alexander Kuleshov began to make comments into the protocol. According to him, the investigator demanded to hand over the document. “I told him that I had not finished working with the document yet, that when I finished, I would give everything to him. Then the investigator stood to my right and began to snatch the entire document from me, while I held the draft protocol. The investigator, grabbing the sheets, with the exception of the last one, pulled them out of my hands and, tearing them out, tore them,” the defense lawyer said. “I didn’t see exactly how the sheets were torn, because I jumped up from the table, and then a verbal altercation began between me and the investigator. So, investigator Erdniev started shouting: “What have you done and what to do now?”, to which I literally answered him the following: “It’s okay, there was no need to pull when I was working with documents. I haven’t finished filling out the document yet, and there’s no point in snatching it from me.”
After this, the lawyer explained, the investigator asked him to go out and wait in the corridor, which the lawyer did, and soon another FSB officer entered the office. When he was invited back into the office, according to the defense attorney, the investigator turned on the camera on his phone and began asking his colleague for details about how the lawyer tore up the protocol. “At that time I said: I do not advise you to give false testimony. There is a video camera in the corridor that recorded when you came here and that you were not here at the time when investigator Erdniev tore up the protocol. After my words, Erdniev’s colleague did not say anything on camera, and the investigator stopped recording,” the defense lawyer explained.
According to Alexander Kuleshov, when he photographed the torn protocol on his phone, the investigator knocked it out of his hands with curses. The defender added that he was subsequently released from the FSB building only after he called the duty officer of this department with a message about the illegal detention.
On January 27, the lawyer reported the crime to the 318th Military Investigation Department of the Investigative Committee, which subsequently refused to initiate a criminal case. Next, the investigator removed the lawyer from participating in the case, the defense attorney appealed this in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation, but the judge did not accept the complaint, citing the fact that the lawyer was no longer a defense attorney in the case.
A criminal case has been initiated against the lawyer under Part 2 of Art. 294 of the Criminal Code of the Russian Federation
On May 18, as Alexander Kuleshov explained, an investigator from the Investigative Committee for the Sakhalin Region called him and said that a criminal case had been opened against the lawyer. The resolution to initiate a criminal case (available to the “AG”) noted that the lawyer destroyed the protocol of interrogation of the accused by tearing 6 sheets of the document containing confessions into separate parts. “Thus, there is sufficient data indicating the presence of signs of a crime under Part 2 of Art. 294 of the Criminal Code of the Russian Federation, which, in accordance with Part 2 of Art. 140 of the Code of Criminal Procedure of the Russian Federation is the basis for initiating a criminal case,” the document states.
Alexander Kuleshov reported the criminal case to the SAPO, which also received a proposal from the regional department of the Ministry of Justice (the AG has it) to initiate disciplinary proceedings against the lawyer. According to the department, an attempt to destroy the protocol of interrogation of the accused as evidence in a criminal case entails the risk of losing the procedural document and can be regarded as an obstacle to a comprehensive, complete and objective investigation of the case. “The method chosen by lawyer Alexander Kuleshov to carry out orders to protect the rights and interests of the accused K. cannot be regarded as a conscientious, qualified performance of his duties by the lawyer and be an acceptable means of defense,” the submission noted.
Subsequently, the lawyer appealed the decision to initiate a criminal case to the Yuzhno-Sakhalinsk court, citing a violation of the deadlines for the procedural check, which lasted three and a half months instead of the 30 days required by law. Nevertheless, the court refused to satisfy the complaint; the Sakhalin Regional Court on September 18 upheld this decision.
The Chamber of Lawyers appealed to the regional prosecutor's office, the Investigative Committee and the FSB
Subsequently, the president of the Sakhalin Bar Association, Maxim Belyanin, sent an appeal (available from “AG”) addressed to the prosecutor of the Sakhalin region, the heads of the regional FSB Directorate of Russia and the regional Investigative Directorate of the RF IC.
He, in particular, noted that a criminal case has not been initiated against the investigator based on the lawyer’s report of a crime, which excludes the possibility of a confrontation between the latter and K. Maxim Belyanin indicated that in this case there is a violation of the rights of Alexander Kuleshov, since the report drawn up according to investigator Erdniev's report about the destruction of the criminal case materials, is checked in full, and the lawyer's statement about Erdniev's illegal actions is considered without the maximum use of all procedural methods of collecting evidence.
The president of the chamber suggested that the investigation put pressure on the client’s lawyer, therefore all the defense lawyers who took part in K.’s case were a potential obstacle for law enforcement officers, since they acted strictly within the law and explained to the accused the right to refuse to testify, despite the insistent demands of the law enforcement agencies to give self-incrimination. Accordingly, in such a situation, signs of a crime are seen - coercion to testify. “In such a situation, Erdniev’s indignation at the actions of lawyer Alexander Kuleshov becomes obvious and understandable, who, after the interrogation and confession of the accused, began to enter into the protocol remarks that were objectionable to the investigator. We believe it is necessary to give a legal assessment in this part of the actions of investigator Erdniev within the framework of the criminal case under investigation and the audit material at the request of Alexander Kuleshov,” the appeal states.
Maxim Belyanin, with reference to the testimony of witness I., added that the protocol of interrogation of the accused was not completed to the end, therefore, by virtue of Art. 83 of the Code of Criminal Procedure of the Russian Federation, this document cannot be admissible evidence in a criminal case against a lawyer. “As a result, damage to this protocol, which has no legal force, by either party does not constitute a crime under Part 2 of Art. 294 of the Criminal Code of the Russian Federation,” he emphasized. – In addition, the protocol was not burned, not completely or even partially destroyed, but only torn. Therefore, if not completely lost, damage to the investigative protocol in the form of a tear does not make it inadmissible or lost evidence in the case and does not affect the process of pre-trial collection of evidence or proving the guilt of the accused. Even when torn, it is readable and all the data in it can be made out.”
The SAPO president explained that the investigator did not complete the protocol in accordance with the norms and requirements of the Code of Criminal Procedure of the Russian Federation, but interrupted the investigative action without calling an interpreter to complete the protocol. “In addition, there is no evidence that the purpose of the person who tore up the interrogation protocol of the accused dated January 24, 2022 was to interfere in any form with the activities of the investigator in order to impede a comprehensive, complete and objective investigation of the case. The protocol could be printed, the lawyer and the accused were in the investigator’s office, and nothing prevented them from calling an interpreter and completing the investigative action in accordance with the norms of the Code of Criminal Procedure of the Russian Federation. Thus, in the actions of the person who tore the protocol, in any case, there is no corpus delicti under Part 2 of Art. 294 of the Criminal Code of the Russian Federation,” noted in the appeal. Maxim Belyanin asked to take into account the stated facts in order to terminate the criminal case against Alexander Kuleshov due to the absence of the incriminated corpus delicti in the actions of the latter.
Comments from the lawyer, his defenders and the president of the SAP
Maxim Belyanin told AG that the Qualification Commission of the Chamber postponed the consideration of disciplinary proceedings against Alexander Kuleshov, since it does not have the authority to establish the presence of a crime in the lawyer’s actions, since this is within the competence of law enforcement agencies. “From the moment the lawyer applied to the chamber, a meeting was held with members of the Commission for the Protection of Professional Rights of Lawyers of the SAP. Lawyer, member of the Chamber Council and Chairman of the Commission for the Protection of Professional Rights of Lawyers Sergei Protopopov began defending his colleague. Our chamber will provide all possible assistance to the lawyer within the framework of measures permitted by criminal procedural law,” he noted.
In a commentary to AG, Alexander Kuleshov called his criminal prosecution far-fetched and unfounded. “I had no intention of committing the act accused of me, since I wrote one and a half pages of comments to the interrogation protocol not in order to tear it up in front of the investigator. It was important for me that my comments reached the prosecutor and the court. It was the investigator who prevented me from fulfilling my professional duties as a lawyer: he did not provide me with the materials of my client’s criminal case for review, I did not know the essence of this case and what my client is accused of. And after all this, he snatched the protocol of the interrogation of the accused from me. They are going to charge me on September 28,” he said.
Alexander Kuleshov’s defense attorney, Oleg Reshetnik, believes that the procedural deadlines for the pre-investigation check were violated in the criminal case. “The South Sakhalin City Court and the Sakhalin Regional Court recognized the decision to initiate a criminal case as legal, despite the defense’s arguments. After receiving a copy of the regional court's decision, a cassation appeal will be prepared. I would like to draw attention to the fact that, according to the investigation, Kuleshov deliberately destroyed the interrogation report of his client in order to impede the investigation of the case, but this argument is refuted by simple human logic. Thus, at the end of the investigative action, the lawyer wrote down comments on the interrogation protocol of one and a half standard sheets, and after the work was done, he allegedly “tried to destroy” his works,” he emphasized.
Lawyer Sergei Protopopov believes that there are sufficient grounds to terminate the criminal case against the lawyer due to the lack of corpus delicti in his actions and the actual event of the crime: “However, the investigator conducting the preliminary investigation notified me and my client of the need to appear next week to file charges Alexander Kuleshov."
According to the defense lawyer, the entire legal community of the Sakhalin region is outraged by the initiation of this criminal case and is monitoring further developments, since any of the lawyers has repeatedly witnessed that after the investigative report was printed and before all participants signed it, the document, due to the provisions established in it errors and inaccuracies were torn up and redone on the spot by any participant. “And these actions were not regarded as illegal, constituting a criminal offense,” noted Sergei Protopopov.
Zinaida Pavlova
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Comments on the article in question
Let us clarify several points characteristic of Article 294 of the Criminal Code of the Russian Federation:
- When attempting to obstruct justice or investigative measures, the motives of the accused do not play a significant role, although they may be taken into account when sentencing.
- The legal field of the article is divided into two independent crimes. The first part deals with the administration of justice, the second - the conduct of investigative measures.
- Only attempts to influence persons making judicial decisions: court members, assessors are a criminal offense. Similar acts committed against officials and other court employees do not constitute the crime in question.
- If obstruction of justice is carried out through bribery, the accused is sentenced based on the totality of the crimes.
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Subjective signs and subjects of crime
Any capable person over 16 years of age is considered as a subject of the crime in question.
At the same time, for the formation of a crime, the interest of the perpetrator in the outcome of the case under consideration does not play a significant role. Therefore, not only the participants in the procedural proceedings, but also their relatives and other persons not involved in the case are subject to criminal liability. The qualifying feature is the use of official powers, therefore, persons vested with state power become special subjects: civil servants, authorized representatives of municipalities, law enforcement officers.
The premeditation of the accused’s actions is considered a subjective feature: here there is always direct intent aimed at obstructing the work of the justice system.
