It is important to know: the secrecy of the investigation of the Code of Criminal Procedure of the Russian Federation (Criminal Procedure Code) is quite closely related to the preliminary investigation of cases (both criminal and civil). The Criminal Procedure Code does not allow any information from the preliminary investigation to be made public. The secret of the investigation is the actions of the investigation officers or the evidence collected, but the list is not limited to this; there are still some points that should be kept secret.
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Refusal to maintain secrecy
Many will wonder whether it is possible to refuse to sign a document on the fact of non-disclosure of data. In such cases, it is necessary to resort to the help of Russian legislation.
Some articles of the Code of Criminal Procedure imply a list of specific persons who, if necessary, are subject to signing a document on maintaining the secrecy of the preliminary proceedings when providing it.
Such persons include:
- victim;
- defender;
- civil plaintiff;
- witness;
- expert;
- 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;
- representative of the victim;
- persons participating in the identification;
- other persons (at the discretion of the investigator).
Based on the same code, everyone must remember that a non-disclosure agreement cannot be offered to an accused or suspect.
You can refuse the general wording of the subscription by explaining to the employee that you will lose the opportunity to even contact a lawyer if necessary, since he will have to mention the criminal case. In this case, the investigator must specify what exactly is not being made public.
Everything about criminal cases
Go to the text of the Code of Criminal Procedure
Url Additional information:
- part 1 161 of the Code of Criminal Procedure
investigation data are not subject to disclosure (general rule)
When can they be disclosed?
- Part 2 161 Code of Criminal Procedure
data can be made public only:
- Part 2 161 Code of Criminal Procedure
with the permission of the investigator
- Part 2 161 Code of Criminal Procedure
to the extent that it is considered acceptable
- Part 2 161 Code of Criminal Procedure
if the disclosure does not contradict the interests of the investigation
- Part 2 161 Code of Criminal Procedure
if the disclosure is not related to a violation of the rights of participants
Subscription
- Part 3 161 Code of Criminal Procedure
subscription to non-disclosure of investigation data
The ban does not apply
- Part 4 161 Code of Criminal Procedure
The ban on publicity does not apply to information:
— clause 1 part 4 161 Code of Criminal Procedure
for information about violation of the law
- clause 2, part 4 161 Code of Criminal Procedure
to information disseminated by the investigator in the media
- clause 3, part 4 161 Code of Criminal Procedure
on information disclosed in open court
Disclosure is unacceptable
- Part 5 161 Code of Criminal Procedure
information about the private life of participants
- Part 5 161 Code of Criminal Procedure
information about the private life of a victim under 14 years of age
Not considered disclosure
- Part 6 161 Code of Criminal Procedure
is not a disclosure:
- clause 1 part 6 161 Code of Criminal Procedure
petitions, other procedural documents
— clause 2, part 6, 161 Code of Criminal Procedure
providing information to a specialist
Article 161 of the Code of Criminal Procedure. Inadmissibility of disclosure of preliminary investigation data
1) Data from the preliminary investigation are not subject to disclosure, except as provided for in parts 2, 4, and 6 of this article.
2) Data from the preliminary investigation may be made public only:
- with the permission of the investigator or inquiry officer,
- and only to the extent that they consider it acceptable,
- if the disclosure does not contradict the interests of the preliminary investigation,
- and is not associated with a violation of the rights, freedoms and legitimate interests
of participants in criminal proceedings.
3) Investigator or interrogating officer:
– warns participants in criminal proceedings about the inadmissibility of disclosing preliminary investigation data without appropriate permission,
— what they sign with a warning of liability in accordance with Article 310 of the Criminal Code.
4) The prohibition on making preliminary investigation data public does not apply to information:
1). on violations of the law by public authorities and their officials;
2). disseminated by an investigator, inquiry officer or prosecutor in the media, information and telecommunications network “Internet” or in any other public way;
3). announced in open court.
5) Disclosure of data is not allowed:
— about the private life of participants in criminal proceedings without their consent,
- as well as data on the private life of a minor victim under the age of 14 years, without the consent of his
legal representative is not allowed.
6) The following does not constitute disclosure of preliminary investigation data:
1). presentation of information on a criminal case in petitions, statements, complaints and other procedural documents in this case, as well as in statements and other documents submitted to state and interstate bodies for the protection of human rights and freedoms;
2). provision of information on a criminal case to a person involved in this case as a specialist, subject to a written undertaking on non-disclosure of this information without the consent of the investigator or interrogating officer
.
Return to the text of the Code of Criminal Procedure
Seek advice
Non-disclosure: keep quiet about everything?
Most participants in the process, leaving the office of the investigation or inquiry department, where they signed papers on maintaining the secrecy of the investigation, think that even one word about a criminal case outside the department of the Ministry of Internal Affairs may threaten them with an article of the Criminal Code of the Russian Federation. Before you are afraid to say too much, you need to know that Article 161 of the Code of Criminal Procedure of the Russian Federation does not impose a taboo on the disclosure of data:
- On non-compliance with the law of the Russian Federation by officials and government authorities in general.
- Voiced by authorized employees in the media, through television and in any other way through which information was transmitted to the masses.
- Discussed in an open court hearing.
If the presentation of data was required when submitting documents to government authorities, disclosure of information is not a crime. The transfer of case data to a specialist involved in the investigation will also fall into this category, but subject to his signing a document on secret data.
Commentary on Article 161 of the Code of Criminal Procedure of the Russian Federation
1. The commented article contains a ban on disclosing preliminary investigation data, except in cases expressly established by law. In this case, the term “preliminary investigation data” refers not only to evidence contained in the materials of the criminal case, but also to any other information that is of interest to the prosecution or affects the rights and legitimate interests of participants in criminal proceedings.
2. In order for certain information to be made public, it is required that the investigator or inquiry officer in charge of the criminal case give appropriate written permission. Permission to give is prohibited if it contradicts the interests of the preliminary investigation or violates the rights, freedoms and legitimate interests of the participants in the process on the part of both the prosecution and the defense.
3. The commented article (Part 3) establishes that an official of criminal proceedings is obliged to take a signature from a person warning of liability under Art. 310 “Disclosure of preliminary investigation data” of the Criminal Code of the Russian Federation. Having a subscription is a prerequisite, since criminal liability under Art. 310 of the Criminal Code of the Russian Federation is possible only in cases where the person was warned about the inadmissibility of such disclosure.
4. The undertaking for non-disclosure of preliminary investigation data, among other information, specifies which data of the preliminary investigation are not subject to disclosure.
5. There are exceptions to the rule established in part 3 of the commented article, reflected in part 4 of the same article. They concern cases where information relates to violations committed by public authorities and their officials (including officials of criminal proceedings), as well as situations where information has already been made public.
6. Part 5 of the commented article contains a ban on disclosing information about the private life of participants in criminal proceedings. Among other acts, the inviolability of information about private life is enshrined in Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950.
Disclosure of information about private life requires the consent of the person himself, given in writing and voluntarily. Since the victim, who has not reached the age of 14, is not able to fully appreciate the significance of certain information, written consent to its disclosure must be given by his legal representative (clause 15 of Article 5 of the Code of Criminal Procedure of the Russian Federation).
7. Part 6 of the commented article establishes that the ban on disclosure of preliminary investigation data does not apply to cases when information circulates within the materials of a criminal case or when appeals are submitted to human rights state and interstate bodies (for example, to the Constitutional Court of the Russian Federation or the European Court of Human Rights ).
8. The legal regulation established by the commented article, as determined by the public interests of the preliminary investigation and the need to prevent (prevent) violations of the rights and legitimate interests of participants in criminal proceedings, does not diverge from the requirements of Part 3 of Art. 55 of the Constitution of the Russian Federation and cannot be considered as preventing the defense attorney in a criminal case from familiarizing himself with the protocols of investigative actions carried out with the participation of the suspect, accused, or other documents that were presented or should have been presented to the suspect or accused. This article also does not contain provisions limiting those provided to the defender in order to specify Part 2 of Art. 24 of the Constitution of the Russian Federation the right to get acquainted with all materials of the criminal case after the preliminary investigation, to write out information from them in any volume or to make copies of them at one’s own expense, including using technical means, and therefore does not create legal prerequisites for the denial of the right to judicial protection for the accused whose rights are violated by illegal actions and decisions of the preliminary investigation bodies.
Judicial practice under Article 310 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 10/02/2018 N 56-APU18-17
witness M. in court disclosed the data of the preliminary investigation, indicating that the investigator told her that he and Aksenov strangled the victim, she also reported that the investigator introduced her to the case materials, which he had no right to do by virtue of Art. 310 of the Criminal Code of the Russian Federation,
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 31, 2018 N 19-UD18-25
In the cassation appeal, lawyer A.A. Kozlov, expressing disagreement with the court decisions taken against the convicted Meshcheryakov, believes that the verdict is based on assumptions; The descriptive and motivational part of the sentence does not meet the requirements of Part 2 of Art. 307 of the Code of Criminal Procedure of the Russian Federation, the actions of the convicted person were qualified incorrectly by the court, since they should have been qualified under Part 3 of Art. and part 2 of Art. 290 of the Criminal Code of the Russian Federation, as an attempt to receive a bribe in a significant amount by an official. He believes that the verdict is based on the testimony of witnesses O.B., B., obtained in violation of the requirements of the law, in particular, the protocol does not contain information about explaining to these persons their procedural duties, provided for in Parts 6 - 9 of Art. 56, 117 Code of Criminal Procedure of the Russian Federation, Art. Art. 294, 310 of the Criminal Code of the Russian Federation. Argues that the descriptive and motivational part of the cassation court ruling does not contain any information about what specific actions committed by Meshcheryakov were declared illegal by the court and what exactly they are expressed in, as well as what sources of evidence and the information contained in them confirm the existence and Meshcheryakov committing these illegal actions for a bribe.
Cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 14, 2021 N 19-UD21-23-A3
The court had no reason not to trust the expert opinion, since it complied with the provisions of Art. 204 of the Code of Criminal Procedure of the Russian Federation, carried out by qualified specialists with the necessary work experience, whose conclusions are complete and consistent. Contrary to the lawyer’s arguments, each of the experts, before starting the research, was warned of liability under Art. Art. 307, 310 of the Criminal Code of the Russian Federation, which is confirmed by their signatures in the introductory part of the conclusion.
