Article 283 of the Code of Criminal Procedure of the Russian Federation and comments to it

1. At the request of the parties or on its own initiative, the court may order a forensic examination. 2. If a forensic examination is ordered, the presiding officer invites the parties to submit written questions to the expert. The questions raised must be announced and the opinions of the participants in the trial heard on them. Having considered these questions, the court, by its ruling or ruling, rejects those that do not relate to the criminal case or the expert’s competence and formulates new questions.

3. A forensic examination is carried out in the manner established by Chapter 27 of this Code.

4. The court, at the request of the parties or on its own initiative, orders a repeat or additional forensic examination if there are contradictions between the expert opinions that cannot be overcome in court proceedings by questioning experts.

Commentary on Article 283 of the Code of Criminal Procedure of the Russian Federation

1. One of the significant features of forensic examination is that here, in court, the expert personally, in an oral and direct manner, participates in the study of the circumstances of the case, thus learning them not only and not so much from the written materials of the criminal case. He can take part in interrogations of the defendant, the victim and all witnesses. If the court has found it possible to consider the case in the absence of the expert who gave an opinion during the investigation of the case, then the expert’s conclusion must be read out and examined at the court hearing.

2. Another feature of forensic examination is that the parties can actively participate in formulating questions to the expert. In cases where there is a need to examine new objects, the court appoints an examination, which can be entrusted to the same expert who conducted the examination during the preliminary investigation, or to another expert.

3. In all other respects, forensic examination is subject to the general rules for conducting examinations in criminal proceedings.

Commentary to Art. 283 of the Criminal Code of the Russian Federation

The object of disclosure of state secrets are public relations that guarantee the foundations of information security of the Russian state. Information security of the Russian Federation is understood as the state of protection of its national interests in the information sphere, determined by the totality of balanced interests of the individual, society and the state. At the same time, one of the most important components of the national interests of the Russian Federation in the information sphere is the protection of information resources containing information related to state secrets from unauthorized access.

The subject of the crime is information constituting a state secret.

From the objective side, the crime consists of disclosing information constituting a state secret in such a way that it became known to other persons. Disclosure should be understood as making public or distributing this information in violation of the established procedure. Disclosure itself can take the form of both active actions (communication in a confidential conversation; demonstration of documents, diagrams, devices, etc.; open report or lecture; publication in the media or printed publications, etc.) and inaction (failure to take measures to classify the transportation of relevant materials; allow outsiders to familiarize themselves with classified information, etc.). The method of disclosure can be any: orally, in writing, using the media, etc.

The disposition of the analyzed article can be classified as blanket-reference: when qualifying a crime, it is necessary to refer to the regulations governing the procedure for circulation of information constituting state secrets (to establish the fact of the illegality of familiarization with the relevant information by unauthorized persons), as well as to the requirements of Art. 275 of the Criminal Code of the Russian Federation (to establish the absence of signs of high treason).

The general rule for handling information containing state secrets is that any form of disclosure and any actions that could lead to the disclosure of information constituting a state secret are prohibited. This information may become available to third parties only if it is declassified or in cases specifically provided for by law (for example, with the participation of a lawyer in a criminal or civil case related to state secrets, or in a situation where information constituting a state secret is transferred to other states, etc.) .d.). When qualifying the disclosure of state secrets, it is necessary to establish the fact of the illegality of the actions of the culprit, which does not present any difficulties due to the fact that each person gaining access to information constituting a state secret is required to sign a non-disclosure agreement.

When distinguishing the disclosure of information constituting a state secret from high treason in the form of issuing state secrets, the main distinguishing features are as follows: a) the subject of the crime under Art. 283 of the Criminal Code of the Russian Federation, there can only be a person to whom a state secret has become known through service or work, and the subject of the issuance of state secrets can be any person; b) the recipient of information upon disclosure, in contrast to extradition, is not only a foreign state, organization or their representatives, but also other third parties; c) high treason, in contrast to the disclosure of state secrets, is pursued by the presence of a strictly defined intent of the perpetrator - to cause damage to the external security of Russia.

The corpus delicti provided for in Part 1 of Art. 283 of the Criminal Code of the Russian Federation, is classified as material. The consequence of disclosure is the fact that information constituting a state secret is perceived by an outsider; At the same time, outsiders should recognize both persons who did not have access to state secrets at all, and persons who had such access, but did not have the right to get acquainted with the information that the perpetrator told them. The addressee, receiving information from the perpetrator, due to his subjective properties, must be able to realize that this information relates to a state secret (due to which the disclosure of information constituting a state secret to minors, the mentally ill, persons who do not speak the language, etc. cannot constitute a complete crime and must be qualified, if there are grounds for it, as an attempted crime).

The subjective side of disclosure of state secrets is characterized by guilt in the form of intent or negligence. When committing a crime intentionally, a person is aware of the inadmissibility of disclosing information constituting a state secret to other persons, foresees that as a result of his actions the information will become available to these persons, desires or consciously allows these consequences to occur (for example, the perpetrator boasts of his knowledge to friends or discusses information constituting a state secret, with a colleague in a public place). In case of careless disclosure of state secrets, the culprit does not foresee that as a result of his actions the state secret could become the property of third parties, although he should have and could have foreseen this, or he foresees the onset of consequences, but arrogantly hopes to prevent them (for example, the culprit uses a vulnerable cipher when transmitting secret information or inadvertently sends secret information to unauthorized persons).

The subject of the analyzed crime is a special one - a sane individual who has reached the age of sixteen, to whom state secrets were entrusted or became known through service or work. Persons to whom the secret was entrusted should be understood as subjects who have special access to state secrets and hold positions in organizations and institutions whose functioning is related to the creation or circulation of materials containing state secrets. Persons to whom the secret became known through their service or work should be understood as subjects who do not hold positions in the specified institutions, but have gained access to state secrets (lawyers participating as defense attorneys in criminal proceedings in cases related to information constituting a state secret ; members of the Federation Council, deputies of the State Duma, judges for the period of execution of their powers; persons who have received access to state secrets in connection with the preparation of dissertations or performance of other scientific research, etc.). All these persons are warned about the non-disclosure of state secrets that have become known to them in connection with the exercise of their powers, and about bringing them to justice in the event of its disclosure, for which a corresponding receipt is taken from them. It is the presence of a specially issued clearance (or access) and the receipt of a subscription to non-disclosure of state secrets that are the key features of the subject of the crime being analyzed. Termination of access to state secrets does not relieve an official or citizen from their obligations to not disclose information constituting a state secret.

If the disclosure of information constituting a state secret is committed by other persons who do not meet the requirements of a special subject, they, depending on the situation, may be held liable for complicity in a crime under Art. 283 of the Criminal Code of the Russian Federation.

The law provides for a qualified definition of disclosure of state secrets - disclosure that, due to negligence, entailed grave consequences (Part 2 of Article 283 of the Criminal Code of the Russian Federation). This attribute is evaluative. Its content must be determined in each specific case, taking into account all the circumstances of the case: the content of the information, its significance, characteristics of the addressee, etc. The disruption of government activities, the need to relocate a sensitive facility, the failure of an intelligence network, etc. can be considered as serious consequences. .

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In assessing the consequences of disclosing state secrets, the relevant instructions of the Government of the Russian Federation should play an important role. As follows from paragraph 3 of Art. 4 of the Law “On State Secrets”, it is the Government of the Russian Federation that must establish the procedure for determining the extent of damage resulting from the unauthorized dissemination of information constituting a state secret, i.e. determine methods according to which it will be possible to calculate the amount of damage. There is currently no corresponding document.

From the subjective side, the crime of divulging state secrets is characterized either as a general negligence, or as a crime with two forms of guilt. This approach is due to the recognition of the possibility of committing the main elements of the crime both intentionally and through negligence. Two forms of guilt in a qualified crime will occur only if the main element was carried out intentionally; if the main element of the crime is committed through negligence, then the qualified element requires a careless form of guilt.

Article 283 of the Criminal Code of the Russian Federation does not cover cases of deliberate collection by a person who does not have access to state secrets of relevant information and its disclosure. Such acts may contain elements of crimes provided for in Art. 275 or art. 276 of the Criminal Code of the Russian Federation, if a state secret becomes the property of a foreign state, foreign organization or their representatives. If a person who does not have clearance (access) to state secrets collects relevant information in the absence of intent to transfer it to a foreign state, the act may be considered, depending on the circumstances, or as an official crime (for example, provided for in Article 285 “Abuse of Official Powers” of the Criminal Code RF), either as an information crime (for example, provided for in Article 272 “Illegal access to computer information” of the Criminal Code of the Russian Federation), or as preparation for some other crime.

Another commentary on Article 283 of the Criminal Procedure Code of the Russian Federation

1. One of the significant features of forensic examination, in contrast to the investigative action of the same name, is that here, in court, the expert personally, in an oral and direct manner, participates in the study of the circumstances of the case, thus learning them not only and not so much from written materials of the criminal case. He can take part in interrogations of the defendant, the victim and all witnesses. If the court has found it possible to consider the case in the absence of the expert who gave an opinion during the investigation of the case, then the expert’s conclusion must be read out and examined at the court hearing.

3. In all other respects, forensic examination is subject to the general rules for conducting examinations in criminal proceedings.

4. The official press (Rossiyskaya Gazeta, 2010, February 9) enthusiastically describes the case of an examination carried out in a criminal trial using a polygraph - an instrument widely known as a lie detector, which has long been used in operational investigative activities, in particular internal affairs bodies, which was also reported in the press (see: Rossiyskaya Gazeta, 2007, January 16), without, however, publishing a normative act regulating such application (it was published in December 1994). In principle, the emergence of a new type of examination in judicial practice is a completely normal phenomenon, predetermined by the laws of scientific and technological progress and not contradicting either the Federal Law “On State Forensic Activities in the Russian Federation” or the Code of Criminal Procedure. However, in all circumstances, the expert is obliged to justify the absolute scientific reliability of the results of the study using the said device, and the court is obliged to evaluate this justification, being responsible both for compliance with the legal procedure for appointing and conducting the examination, and for the admissibility of the evidence obtained. The case described in the newspaper, a detailed discussion of which does not correspond to the genre of our book, has nothing to do with either forensics or justice.

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Expertise at the judicial stage

- part 1 283 of the Code of Criminal Procedure

an examination may be ordered at the request of the parties

- part 1 283 of the Code of Criminal Procedure

an examination may be ordered at the initiative of the court

Procedure for appointing an examination