The secret of the preliminary investigation of the Criminal Procedure Code of the Russian Federation: meaning and features

General concept of investigative secrecy

The secrecy of the investigation of the Criminal Procedure Code is certain actions of law enforcement officers during the investigation or evidence already collected, as well as some points that must be kept secret. The secrecy of the preliminary investigation of the Criminal Code of the Russian Federation is, first of all, necessary to ensure that information from a particular case does not fall into the hands of fraudsters, witnesses, victims or other private participants in the criminal process. Disclosure of it may entail irreparable consequences and, accordingly, violate the legitimate rights and interests of subjects of criminal proceedings.

Law enforcement officials have permission to disclose case materials, and only on the condition that the publicity will not negatively affect the investigation and the interests of those involved in the case will not be violated as a result. It should be noted that secrecy is imposed on certain materials from the case for investigators. They cannot disclose personal information of those involved in the process, since this is personal data.

The secrecy of the investigation article of the Code of Criminal Procedure of the Russian Federation does not consist of one single list of data and materials prohibited from disclosure; in each specific case, officials themselves decide what information can be disclosed and what should be left confidential. The Criminal Procedure Code requires that all persons involved in the investigation sign a non-disclosure document; this document is taken from the persons involved in the case by the investigator or interrogating officer. The secrecy of the investigation extends to the following participants in the process:

Industrial espionage and disclosure of trade secrets in Article 183 of the Criminal Code of the Russian Federation

• victim;
• defender;
• civil plaintiff;
• witness;
• expert;
• translator;
• witness;
• representative of the victim;
• persons who participate in the identification;
• other persons (at the discretion of the investigator).

Maintaining the secrecy of the investigation allows one to avoid mutual accusations before the court pronounces a verdict, ensures the safety of witnesses and other participants in criminal proceedings, and also protects the honor and dignity of the suspect himself before he is found guilty.

Based on the Code of Criminal Procedure of the Russian Federation, it should be noted that a non-disclosure agreement cannot be submitted to the accused or suspect. Russian law does not allow you to refuse a non-disclosure agreement. But, you can abandon the general formulation, explaining this by the fact that due to the signing of an ordinary non-disclosure document, a person will not even be able to contact a lawyer. In such situations, the investigative body must specify what can be made public and this will not affect the investigation, and what cannot. Before signing a non-disclosure document, you need to carefully study the contents. It often happens that the subscription itself does not contain specific data, but only contains a general phrase about non-disclosure. This formulation is incorrect; by forcing the persons involved in the case to sign such a document, the investigator himself is violating the law, because the items of confidential information must be clearly indicated.

If, after signing a document, the persons involved in the case tell someone the materials previously known to them, this is not a violation of the subscription. A violation would be the disclosure of data obtained in a private conversation with an official, which was not known to the person before the conversation.

The refusal of a participant in criminal proceedings to sign a non-disclosure agreement does not relieve the person from liability, and in some cases, it is even grounds for the removal of this participant from the case.

Practice under Art. 161 part 2 of the Criminal Code of the Russian Federation (preliminary investigation stage)

Dear readers!

It's no secret that investigators, when appointing defense attorneys in accordance with Art. 51 of the Code of Criminal Procedure of the Russian Federation, often openly offer cooperation, which, in their opinion, is usually understood as inducing the defendant to a full confession of guilt, accompanied by a version of the testimony that fits into their presentation, contained in the resolutions on initiating a criminal case, on implicating them as an accused and in an indictment conclusion.

By participating in the provision of free legal assistance, I prefer the defense of suspects and accused. Having familiarized myself with the available materials after entering into the case, I explain to the client what a lawyer is and what they eat in Moscow (appointment procedure, the myth of the “state” lawyer, etc.) and share my thoughts with the client in private before the first procedural action .

Not always, not all trustees and not everything “catch up”. It's not scary, because... it is possible to catch up during investigative actions. It’s another matter when the principal makes it known that he doesn’t need anyone, incl. and a lawyer. This kind of thing stresses me out, because you feel like you’re superfluous in this matter. Although, of course, you do what you consider necessary for protection purposes.

Having the opportunity to select applications in the chamber’s automated system, I try to find “problematic” cases, since it is not very interesting to participate in non-problematic cases (where you are not needed). This search is similar to fortune telling, but the probability of getting to where you are needed is slightly higher. There are often certain categories of orders at work, which simplifies protection.

This year he participated in 7 cases of robbery (Article 161 of the Criminal Code of the Russian Federation) at the investigation stage. Only one case was initially entered into by agreement. For two more, the principals asked for a conclusion even before the start of the proceedings.

Six principals were detained, five were released, incl. The courts refused to take two of them into custody. On the third, the court returned the petition to the investigator after a 72-hour extension of detention (and this happens in the capital). The court released the fourth under a ban on certain actions at the end of the ninth month, the fifth was and remains at large, but the sixth could not be defended and he ended up in custody due to foreign citizenship and, apparently, will remain there until the verdict. The seventh refused my help after losing the appeal, which upheld his detention, but a couple of days later the court changed his preventive measure to house arrest.

This is a kind of statistics.

When I compare these cases, the only thing they have in common is that all the principals are 18-25 years old and have no criminal record. 1 serves, 3 work, 1 studies, and 2 are idle.

The approaches of the courts in similar cases are diametrically opposed. In particular, two cases involve foreigners. The damage is several hundred rubles in each case. In both cases, the signs of robbery are questionable. But if one judge refuses to satisfy the nonsense with which the investigator came to him, and even rewards the latter with a private trader, the second only had enough foreignness to write two pages of a guardian’s order.

Complaints? Yes, except for the case of which I will give the first example.

In the fourth month of detention, I was found and persuaded to participate in the investigation into the case of three young people who, in one of the cities near Moscow, had stolen alcohol from a chain store, from which two escaped with the potion, and the third was caught. Then there is a conflict, a police chase, and being caught red-handed.

The principal is 25 years old, has no criminal record, does not work, does not study, is not married, has no children, is not registered and, in general, wherever you point, everything is empty. He just always smiles.

- I see you’re having fun in custody?

- We feed, water, sleep, breathe. You can tolerate it.

“I’m afraid I’ll have to endure it for more than one month.”

- Yes, to hell with it.

- With what?

- Happy month.

So we talked. Lasted as always. The one who entered into the agreement with me disappeared, and the principal refused to appeal the extension or the progress of the investigation. The fact is that he and his friends in the car during the arrest seized another fifty bottles of poison, the origin of which the investigation was not officially interested in, and we kept silent so as not to wake up the beast (the pros understand what kind it is).

The next time was also boring.

When, after 6 months of detention, the time came to prove the particular complexity of the case, I decided to give the investigator something like a public flogging. I study the material: the horse did not lie down. That is, they didn’t do anything for 6 months! What should I do? The usual go-stop, a whole volume was collected in the first few days, there is enough texture, why are we delaying? What law provides for “harmat collection” as a procedural action? Why are the objects of attack in the case 6 bottles of poison, and the investigation considers it necessary to examine fifty others?

To these and other questions, the investigator answered that everything is not so simple, an investigation is underway, the criminal investigation department is puzzled, it is necessary to examine the seized items using forensic equipment, conduct a number of complex examinations, and so on. In general, the matter of the century! The court decided that a couple of examinations were still worth conducting, and examining the confiscated property is useful because it sometimes forces you to use your brain. Of course, extend it!

The investigators/courts planned each extension of detention in such a way that, in relation to my client, the investigator’s petition was considered in third place on the day after the others were satisfied. This involuntarily put pressure on us, although such a feeling should be alien to a lawyer.

By this time, the court had already sent the third private party to the head of the investigative agency. My colleague, who defended the client’s accomplice, twice got the prosecutor to submit representations demanding that the red tape be brought to disciplinary liability.

Two investigators investigating the case quit, the third turned out to be sick (in reality, always with a cold or Covid, I still don’t understand) and very incompetent (like some of those who remained in the service, which was staffed at half the rate). This miracle of domestic investigation stunned me with its very first call: Your smiling ward staged a riot in the pre-trial detention center, many were placed in “freeze”, we managed to drag him out to the temporary detention facility. Come, if you do everything as needed, then... this won’t add anything to my lawyer’s pocket))).

Yeah, it's overclocked.

Of course, he did not arrive immediately and not the next day. I see M. is still smiling.

- Rebeled? Have you decided to confess? Have you taken on anything else?

- What are you talking about?! Yes, I wish...

“I see, that means everything is as before.”

In a word, gradually gaining tension with the investigation, we came to the next extension - up to 9 months.

The need to extend the custody in the petition was justified by the desire to be notified, familiarized and sent to the prosecutor with the indictment. The female investigator turned out to be completely unprepared and, when asked by the defense attorney, explained the need for an extension by saying that the defense attorney (!) was not fulfilling his duties and was not helping the investigation collect the harmat.

You may not believe it, but my client, upon hearing this “something,” burst into tears (by the way, out of a habit that I personally could not overcome in him during my cooperation)! True, the judge, a strict lady, immediately besieged him.

I couldn’t say anything, but I couldn’t close my mouth either! What surprised me was not the investigator, but the complete equanimity of one of my former colleagues in a blue uniform, opposite me, for whom the sight of her multi-colored claws was clearly more important.

Dear readers! Of course, I already knew by that time that two accomplices, whose defenders came to the rescue and presented to the court statements, consents of the owners, their passports, extracts from Rosreestr for the apartments where the accused intended to live, and other waste paper, other judges refused to keep further in Pre-trial detention center and kicked out under house arrest. But for the HF, in unison with the investigator, to attack the lawyer... I could not have predicted this.

— Defender, what have you been doing all these 5 months in the case?

- HF, you know, I defended Mr. M.

— He says that he officially works at Dixie in the University metro area. What, they couldn’t get a certificate? He said that his relative (who, by the way, disappeared) lives in Ramenki. Is it difficult to invite him to write a statement with a request and consent for M. to live with him?

- Let me take 51st.

- (in unison, together with the prosecutor) Do you want to help your client?

— HF and respected former colleague! That's all I do. I don't want Mr. M. to be under house arrest.

— ???????????????

- You see... in general, it’s hard to explain all this... and home arrest is not a pleasant thing. In general, M. and I conferred and decided that domarrest was not for us, but we would like something softer! For example, prohibiting certain actions. This is in the power of the court, if I'm not mistaken? And, by the way, no one can charge me with anything other than protection. But how to implement it is up to me and the trustee.

- Investigator?

- He will run away, hide, contact his accomplices and continue his criminal activities, there is no reason to release him.

- What does the prosecutor think about all this?

- VC, M. does not have registration in Moscow and the region, so there is no reason to change the preventive measure.

I had to remind you that “he will hide and continue” needs to be proven, and the prosecution did not bother to at least try to do this for 8 months. If a person does not have registration in Moscow and the region, this does not at all indicate that he does not have the opportunity to live in this region. After all, he lived for two years before his arrest, which is confirmed by the testimony of his accomplices and other persons. And at what address to impose bans, this is unnecessary, because the law does not dictate the mandatory registration for this measure of restraint.

HF did not sit in the deliberation room for a long time.

— To refuse the investigator’s request, to satisfy the defense lawyer’s request, to elect a ban on certain actions at the place of residence (no matter which one). True, in the text of the resolution, the HC for some reason decided to indicate that the prosecutor asked to change the preventive measure to do-arrest or a ban on certain actions. I don’t know for what reason, and it probably doesn’t matter.

We leave the hall, and there... Who do you think could have expected M.’s trial to end? That's right, his accomplices. Those who were allegedly under arrest and for whom this measure was subsequently also changed to prohibit certain actions.

Soon an acquaintance with the already completely boring case took place, it went to court and, as expected, ended with a suspended sentence. But that was already without me.

Responsibility for disclosure of investigative data

Responsibility for failure to maintain the secrecy of the investigation is prescribed in Article 310 of the Criminal Code of the Russian Federation. According to its provisions, the violator may face one of the following punishments:

• a fine of up to 80 thousand rubles or in the amount of the perpetrator’s salary for the last six months;
• compulsory work for up to 480 hours;
• correctional labor for up to 2 years;
• arrest for up to 3 months.

It should be taken into account that Article 310 of the Criminal Code of the Russian Federation will apply only to those citizens whom the investigator invited to sign a non-disclosure document. Sometimes the signing of papers occurs only at the second or third meeting.

The mystery of the preliminary investigation

In theoretical terms, such a principle as the secrecy of the preliminary investigation is widely known, contrasted with the publicity of the trial within the framework of the continental doctrine of mixed criminal proceedings, where the preliminary investigation is separated from the trial by a clear procedural boundary and is built on directly opposite principles. One of them is the secret nature of the preliminary investigation, primarily in relation to the general public (the media, ordinary citizens), but also partly in relation to private individuals participating in the criminal process - the full investigation materials are provided to them and their representatives only after the end of the investigation .

Provisions on the secrecy of the preliminary investigation are enshrined in various norms of the current Russian criminal procedure law, but primarily in Art. 161 of the Code of Criminal Procedure of the Russian Federation, called “Inadmissibility of disclosure of preliminary investigation data.” In accordance with it, the data of the preliminary investigation are not subject to disclosure without the special permission of the investigator or inquiry officer, who also determine the permissible volume of the information that is allowed to be made public. The investigator or inquiry officer has the right to give this permission only if the disclosure of the relevant data a) does not contradict the interests of the preliminary investigation and b) is not associated with a violation of the rights and legitimate interests of participants in criminal proceedings.

Disclosure of data on the private life of participants in criminal proceedings without their consent is in any case not allowed, i.e. Here, the permission of the investigator (inquiry officer) alone is not enough - it is also necessary to obtain the consent of the interested person. Participants in criminal proceedings are warned by the investigator (inquirer) about the inadmissibility of disclosing preliminary investigation data without appropriate permission and about criminal liability for such disclosure (Article 310 of the Criminal Code of the Russian Federation), and the warning should not be oral, but written (they sign).

Ensuring the secrecy of the preliminary investigation is really necessary both to solve the problems of the preliminary investigation itself to comprehensively establish all the circumstances of the case, and from the point of view of respecting the rights of private individuals participating in the criminal process: protecting the honest name of persons suspected (accused) of committing a crime until it is finally their guilt and that of their relatives has been proven; protecting the privacy of persons affected by crime; protecting participants in the process from possible attacks by those who are interested in hindering the investigation.

If we allow the opposite beginning - the beginning of publicity, then this will certainly harm the establishment of the truth in the case and create favorable conditions for opposition to the investigation by persons who have violated the criminal law, and will also negatively affect the rights of many participants in the criminal process. In general, the institution of secrecy of the preliminary investigation serves as one of the important guarantees of the proper administration of justice and ensuring individual rights in criminal proceedings.

For the same reasons, private individuals participating in criminal proceedings (accused, victim, etc.) and their representatives (defenders) are fully acquainted with the case materials only after the end of the investigation, but not before. Moreover, even in the decision to bring a person to trial The quality of the accused, which is determined during the investigation, should not indicate specific evidence (Article 171 of the Code of Criminal Procedure of the Russian Federation), which is explained by the need to ensure the secrecy of the preliminary investigation.

For similar reasons, in accordance with clause 6, part 1, art. 53 of the Code of Criminal Procedure of the Russian Federation, from the moment of admission to participation in a criminal case and until the end of the investigation, the defense lawyer has the right to become acquainted with only a limited set of procedural documents: the arrest record; a decision on the application of a preventive measure; protocols of investigative actions carried out exclusively with the participation of the suspect or accused; other documents that were presented or should have been presented to the suspect (accused). The defense attorney does not have access to the rest of the case materials until the preliminary investigation is completed. Other examples of ensuring the secrecy of the preliminary investigation in relation to participants in criminal proceedings can be given.

What is not an investigative secret and what is confidential?

Many citizens, after leaving the investigator’s office, are afraid to even say a word about the preliminary investigation and the case materials in general. In order not to disrupt the preliminary stage of the investigation and not to be subject to criminal liability for disclosing confidential information. You need to understand that you can talk, because this is the only way the person involved in the investigation will be able to distinguish between forbidden and permitted information. It is not a secret of the investigation:

• decisions of the investigator made during criminal proceedings, which the accused or suspect can familiarize themselves with (resolution to initiate a criminal case - Article 146 part 4 of the Code of Criminal Procedure of the Russian Federation, resolution to select a preventive measure - Article 101 part 2 of the Code of Criminal Procedure of the Russian Federation, etc.);
• resolution to extend the preliminary investigation in accordance with Article 162 Part 8 of the Code of Criminal Procedure of the Russian Federation;
• protocol of detention, as well as protocols of investigative actions that were drawn up with the participation of the suspect, accused - Article 53, paragraph 1. Part 6 of the Code of Criminal Procedure of the Russian Federation;
• resolutions on the appointment of forensic examinations and the conclusions of these same examinations - Art. Articles 195 and 198 of the Code of Criminal Procedure of the Russian Federation;
• court decisions on conducting operational-search activities;
• all case materials presented to the court by the investigator and prosecutor when considering the issue of taking the accused into custody and extending the terms of his detention;
• case materials that became the basis for initiating a criminal case - Article 125 of the Code of Criminal Procedure of the Russian Federation;
• information about the persons who conducted the preliminary investigation in the criminal case and the composition of the investigative team - Art. 163 part 2 of the Code of Criminal Procedure of the Russian Federation;
• information about the experts and the institutions where the examinations were carried out. The data that confirms the expert’s qualification level is also no secret.

The consequences of disclosing this information are not critical, their disclosure is not punishable by law, and moreover, familiarization with the above materials is mandatory, in some cases. A completely different result will be if the defendants in the case begin to disclose information such as:

• testimony of witnesses and victims;
• a list of material evidence and a protocol for their inclusion in the criminal case;
• results of searches;
• the investigator's petition to seize postal, telegraph and telephone wiretaps.

The law of the Russian Federation provides for a fine of up to 80 thousand rubles for the disclosure of this information. wages and other income for a period of up to 6 months, or correctional labor for a period of up to 480 hours, or arrest for up to 3 months. Access to these case materials becomes open after the completion of the investigation and the court's sentencing.

The accused has the right to appeal the verdict and has the right to demand, based on the stated procedural norms, a confrontation with the victim or witness, as well as the interrogation of defense witnesses. If the petition is granted, the defendant's defense attorney may personally participate in investigative experiments and other specified investigative actions.

Every year, amendments are made to the Code of Criminal Procedure of the Russian Federation and the investigative curtain is opened more and more, thereby reducing the limits of investigative secrecy. On the one hand, this is good, because all those involved in the case will be able to monitor the transparency of the investigation, but on the other hand, the beginning of publicity can harm the establishment of the truth and create favorable conditions for opposition to the investigation by persons who have violated the criminal law. Be that as it may, the institution of secrecy of the preliminary investigation today is one of the most important guarantees of the proper administration of justice and ensuring individual rights in criminal proceedings.

What happens if you don’t respect the secrecy of the investigation?

According to Article 161 of the Code of Criminal Procedure of the Russian Federation, preliminary investigation data can be disclosed only with the permission of the investigator or inquiry officer, and only to the extent that they deem necessary. Disclosure of investigative secrets should not contradict the interests of the case and should not violate the rights, freedoms or interests of the participants in the process. The following categories of persons are required to sign a non-disclosure statement:

• the victim and his lawyer;
• plaintiff;
• expert and/or translator;
• witness and attesting witness;
• persons who took part in the identification.

As a rule, the question of whether it is possible not to maintain the secrecy of the investigation arises among plaintiffs or defendants who wish to contact a lawyer. In this case, the investigator is obliged to explain to the citizen which specific points cannot be made public.

The mystery of the investigation and media publication

Investigative secrecy is one of the types of secrets that establishes a regime of confidentiality in a criminal case and limits access to it, which is valid during the preliminary investigation, that is, from the moment of initiation of a criminal case and the issuance of the appropriate resolution until the termination of the criminal case (in accordance with Chapter 29 of the Code of Criminal Procedure of the Russian Federation) or before sending the indictment (indictment) to the prosecutor.

Investigative secrecy is a prohibition on disclosing preliminary investigation data without the permission of the investigator or interrogator. General rule: preliminary investigation data is not subject to disclosure.

The period of secrecy of the investigation is the period of preliminary investigation (from the moment the decision to initiate a criminal case is issued and until the issuance of an indictment or a decision to terminate the criminal case, transfer of the case to court).

Disclosure of information about the progress of the investigation should not contradict the interests of the preliminary investigation and should not entail a violation of the rights and legitimate interests of participants in criminal proceedings. In this regard, obtaining permission from the investigator or interrogator is a mandatory requirement for disclosing preliminary investigation data in any form. The law does not define the form of permission; accordingly, it can be expressed in any acceptable form that allows identifying the will of the investigator or interrogating officer.

Who is obliged to keep the investigation secret?

Only two procedural persons are authorized to give permission to disseminate preliminary investigation data - the investigator or the inquiry officer. Anyone from whom a subscription to non-disclosure of preliminary investigation data has been taken away as part of the investigation is required to keep the information known to them confidential (including a journalist if, for example, he was questioned as a witness).

Who does not have the right to divulge the secrets of the investigation?

Any persons who become aware of the preliminary investigation data, including:

• Participants in criminal proceedings who have signed a non-disclosure agreement (criminal liability is established for disclosure)
• Journalists (for disclosure without the consent of the investigator - administrative liability - Article 13.14 of the Code of Administrative Offenses of the Russian Federation).

Access to criminal case materials

During the preliminary investigation, the investigative secrecy regime applies. Therefore, materials of a criminal case can only be obtained with the consent of the investigator (inquiry officer).

After the completion of the preliminary investigation, the case materials can be obtained upon request, and information from the case materials can be disseminated in the media. At the same time, the rights to privacy, personal and family secrets, the secret of adoption and other secrets should not be violated.

Mandatory Law Enforcement Reports

Not many media editorial offices and journalists know, but they are OBLIGATED, upon request from interested parties, to publish:

• Report on rehabilitation (part 3 of article 136 of the Code of Criminal Procedure of the Russian Federation)
• Notice of refusal to initiate a criminal case (Part 3 of Article 148 of the Code of Criminal Procedure of the Russian Federation)

This is one of the measures to restore the honor, dignity and good name of a suspect, convicted person and compensate for the moral suffering caused to him.

The procedure for publishing a message about rehabilitation:

Media editors are required to publish a message about rehabilitation within 30 days from the date of receipt of the request to publish a message about rehabilitation. However, this responsibility does not lie with all media editorial offices, but only with those that previously disseminated information about:

• detention of the rehabilitated person;
• taking him into custody;
• temporary removal from office;
• application of compulsory medical measures to him;
• about the judgment of the rehabilitated person, other illegal actions applied to him

Who has the right to request a rehabilitation report? In the media editorial office, a requirement to publish a message about rehabilitation (that is, an acquittal or termination of criminal prosecution on rehabilitative grounds) can be sent by:

• rehabilitated;
• close relatives and other relatives (in case of death of the rehabilitated person);
• court, prosecutor, head of the investigative body, investigator, inquirer (by their written instructions).

The procedure for publishing a notice of refusal to initiate criminal proceedings

Media editors are required to inform about the refusal to initiate a criminal case based on the results of checking a report of a crime disseminated by the media. That is, the basis for a media outlet to receive a message about refusal to initiate a criminal case is a previously disseminated message about a crime in that media. If the disseminated information is not confirmed, the media editors must refute the information.

A prosecutor, the head of an investigative body, an investigator, or an inquiry officer have the right to request the publication of a notice of refusal to initiate a criminal case.

There is no deadline for publication, so it will be set each time by agreement between the prosecutor, investigator, inquiry officer and the media editors.

Who is obliged to remain silent

All information disclosed in the investigator’s office should not be disclosed to third parties. The person responsible for the data leak will be held accountable under Article 310 of the Criminal Code of the Russian Federation. According to the law, all parties to the process must keep secrets. But there are certain exceptions for authorized bodies, which is dictated by the necessary freedom of action within the framework of the investigation.

In this case, the investigator, inquiry officer and prosecutor act within the framework of Article 161 of the Code of Criminal Procedure of the Russian Federation. It strictly prohibits the following actions:

1. Publication of classified information by an investigator, prosecutor or interrogator in the media.
2. Ignoring the law on the secrecy of preliminary investigation by officials.
3. Failure to comply with rules regarding reservations in open court.

This means that if the presentation of some information was necessary to submit documents to a court or other government agency, then its disclosure will not be considered a crime. The same applies to the moment of transferring data and materials to the specialist who will conduct the investigative experiment. But information about the investigation cannot be disclosed publicly or at open court hearings.

Why should the investigation be kept secret?

During the preliminary investigation, the investigator collects information without the permission of the parties involved in the process. Permission to collect personal or other data is obtained only by certain specialists who, for example, are involved in conducting examinations.

Disclosure of information to other law enforcement officials is also unacceptable. All participants in the investigation have the right to count on:

• anonymity of your personal life, since such information is confidential by law;
• impartiality of law enforcement officers and objectivity in the data collection process.

Legislative acts do not have clear criteria for determining the secrecy of information. Experts make decisions about this based on the characteristics of each specific case. The commentary to Article 310 of the Criminal Code of the Russian Federation states that the object of such a crime as violation of the secrecy of an investigation is public relations. Their subject can be any materials: evidence, physical evidence, as well as the sources of their origin.

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Subscription on non-disclosure of preliminary investigation data

The secret of the investigation. Subscription on non-disclosure of preliminary investigation data. Both in the movies and in real life, there are probably no phrases for investigators that they utter with greater feeling, pathos and sincere, but carefully hidden narcissism, than these.

Despite the fact that the criminal procedural legislation does not contain the concept of “investigative secrecy”, the prohibition of an investigator or interrogator from disclosing both certain information and any information that has become or will become known to a person in connection with his participation in the investigation of a criminal case, legislatively enshrined in Art. 161 Code of Criminal Procedure of the Russian Federation. It is assumed, and not unreasonably, that as a result of premature notification of the persons involved in the case, or persons having a non-procedural interest in it, they may destroy evidence, eliminate persons possessing information of interest to the investigation, and gain leverage over the investigator, operative or prosecutor.

One way or another, this norm gives the investigator the right to take away a written signature from a participant in the process on non-disclosure of investigation data. Preliminary investigation data includes virtually any information obtained during criminal proceedings, for example, about the progress of the investigation, about the evidence collected and the sources of its receipt, about the testimony of persons interrogated in the case, about the use of coercive measures, about the content and results of investigative actions, about carried out or planned activities of an operational-search and investigative nature, etc. Information that a person had before committing a crime does not apply to the data of the preliminary investigation.

Violation of the subscription in any way: transferring to another person verbal information about the case, one’s own notes from the materials of the criminal case, the materials themselves, or copies of procedural documents from the case, entails criminal prosecution on the grounds of committing a crime under Art. 310 of the Criminal Code of the Russian Federation.

In theory, everything seems to be clear and understandable. However, in fact, investigators, by presenting a participant in the process with a non-disclosure agreement to sign, are following falsely understood and contradictory requirements of Art. 161 of the Code of Criminal Procedure of the Russian Federation, the principles of globalism. In the vast majority of cases, the signatory is subject to a total ban on disclosing investigation data, and criminal liability for violating this obligation. Meanwhile, part 2 of Art. 161 of the Code of Criminal Procedure of the Russian Federation focuses only on those data that became known to the participant in criminal proceedings.

In other words, the investigator is obliged to clearly define in the subscription the information on the disclosure of which he is prohibited. Undoubtedly, “known” is data about the content and result of an investigative action in which a person took personal participation. In other cases, information that has become known to a person and is not subject to dissemination must be specified. The signatory must be made aware of exactly what and when an event occurred, as well as who took part in it. Moreover, if this information was not received by him personally, the disclosure of such information does not violate the requirements of the obligation assigned to him.

Thus, if in the procedure for warning a participant in the process the investigator committed violations of the requirements of Art. 161 of the Code of Criminal Procedure of the Russian Federation, the person is considered not to have been warned about the non-disclosure of investigation data. If the procedural issues are resolved flawlessly, but the investigator presents the signature for signature after the disclosure of the information supposed to be prohibited, the participant in the proceedings will not be recognized as a person who has violated the provisions of this rule of law.

It should be borne in mind that according to Art. Art. 46, 47 of the Code of Criminal Procedure of the Russian Federation, a warning about liability for disclosing preliminary investigation data cannot be applied to a suspect or accused.

Criminal procedural legislation provides a list of persons who can be warned in writing about the inadmissibility of disclosing investigation data that has become known to them without the permission of the investigator:

• victim (part 7 of article 42 of the Code of Criminal Procedure of the Russian Federation);
• defense attorney (part 2 of article 53 of the Code of Criminal Procedure of the Russian Federation);
• civil plaintiff (part 6 of article 44 of the Code of Criminal Procedure of the Russian Federation);
• witness (part 9 of article 56 of the Code of Criminal Procedure of the Russian Federation);
• expert (part 6 of article 57 of the Code of Criminal Procedure of the Russian Federation);
• specialist (part 4 of article 58 of the Code of Criminal Procedure of the Russian Federation);
• translator (part 5 of article 59 of the Code of Criminal Procedure of the Russian Federation);
• witness (part 4 of article 60 of the Code of Criminal Procedure of the Russian Federation);
• representative of the victim;
• persons participating in the identification;
• other persons.