A criminal record presupposes a certain social and legal status of a convicted person who committed a criminal offense for which a sentence was passed. Being in the status of a convicted person, a person is potentially dangerous to society, therefore the presence of such status entails some legal restrictions. The fact of a criminal record comes into force immediately after the verdict is announced at a court hearing and ends with its liquidation or expungement in accordance with Article 86 of the Criminal Code.
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Under what conditions does a citizen not acquire the status of a convicted person?
- Guilt was proven, but no punishment was imposed in court for the following reasons:
- due to the expiration of the statute of limitations for issuing punishment for this offense;
- avoidance of punishment under amnesty;
- the age of the defendant is under 18 years when committing a crime of minor gravity;
- Persons who are exempt from punishment:
- when circumstances change, when the crime committed loses its social danger. For example, if a citizen who does not have an official permit to provide medical care in a private medical practice causes harm to a person’s health through negligence. Moreover, the permission he received occurred before the sentencing, so the content of the crime loses its force and is transferred to the rank of offenses under the Administrative Code. In connection with all these circumstances, the court exempts the citizen from punishment under the Criminal Code;
- recognition of the fact of mental incapacity or the presence of another serious somatic illness that manifested itself after the fact of the crime committed. If an improvement in well-being has occurred, and the term of the charge has not yet expired, a penalty will be applied to the convicted person in accordance with the article of the Criminal Code, that is, he will be officially found guilty. After this, the expungement or expungement of a criminal record is carried out in accordance with the general procedure;
- upon receipt of a deferment on the imposition of a penalty if the offender has children under the age of 14 years. We are talking about the category of persons, the list of which is presented in Art. 82 of the Criminal Code: pregnant women; persons raising children under 14 years of age without a spouse (single fathers and mothers).
This is not a complete list of reasons that constitute grounds for avoiding punishment. In each individual case, a decision can only be made in court.
Checking applicants for criminal records
Among the mandatory documents that a citizen presents to the employer when applying for a job is a certificate of the presence (absence) of a criminal record and the fact of criminal prosecution (Article 65 of the Labor Code of the Russian Federation). The form and procedure for issuing such a certificate are approved by Order of the Ministry of Internal Affairs of Russia dated November 7, 2011 No. 1121.
If the Labor Code of the Russian Federation or other law contains a prohibition for those with a criminal record to work in a certain industry or position, a certificate is required. In other cases, the employer does not have the right to request such information from the applicant - this will be considered discrimination.
If, when checking the certificate, the employer concludes that the citizen cannot be allowed to work in a “prohibited” position, he will be denied an employment contract. Also, refusal to hire is possible if a criminal record certificate is not provided in violation of Art. 65 Labor Code of the Russian Federation.
At the request of a person who is refused to conclude an employment contract, the employer is obliged to provide the reason for the refusal in writing. The employer has 7 days to submit a written refusal (Article 64 of the Labor Code of the Russian Federation).
If the employer subsequently discovers that the certificate of criminal record submitted by the employee is forged, the employment contract with such employee will be terminated under clause 11, part 1, art. 81 Labor Code of the Russian Federation. The reason is that the employee submitted false documents when concluding an employment contract.
If the employer hired the employee without a certificate and it turned out that he has or had a criminal record that prevents further work, the employee will be fired under clause 11, part 1, art. 77 Labor Code of the Russian Federation. The reason is a violation of the rules for concluding an employment contract, excluding the possibility of continuing work.
Note! Based on Art. 84 of the Labor Code of the Russian Federation, the employer is obliged to offer the employee another job that is not subject to the ban on employment of convicted citizens. In addition, the employee in this case is paid severance pay in the amount of average monthly earnings.
Legal restrictions on criminal status
The fact of a criminal record provides for certain conditions and restrictions in the criminal and general legal and penal sense. This status of a citizen is taken into account when assessing repeated criminal acts under the same article. Then the punishment will be more serious. Also, the status of a convicted person limits a citizen’s rights to engage in certain types of professional activity, to occupy important positions and positions (judicial or customs authorities, prosecutor’s office, etc.), as well as the right to obtain citizenship, guardianship rights, the possibility of adoption, etc. An outstanding criminal record deprives opportunity to leave your country.
When does a criminal record occur and what are its consequences?
A criminal record arises at the moment when a court's guilty verdict comes into force.
And it lasts for a certain period of time, which is often years. A criminal record leaves an imprint on the work activity of citizens, prohibiting them from:
- hold certain positions in the civil service, judicial and law enforcement agencies;
- work in the field of teaching activities that involve raising minor children;
- work in the legal profession;
- hold leadership positions in the financial sector;
- work in aviation security services;
- carry out activities in certain areas, for example detective and security.
There are other restrictions, depending on the type of crime committed. For example, citizens with a criminal record do not have the opportunity to:
- stand for election and be elected to state authorities and local councils, if the criminal record has not been cleared by election day;
- obtain a hunting license and a weapons license;
- to be guardians and adoptive parents (if this is a conviction for crimes against the person), etc.
Important: if there is a valid, that is, unexpunged and outstanding criminal record, the citizen is obliged to indicate this when filling out some official documents in various authorities.
The negative consequences that a criminal record causes can also have a criminal nature, which manifests itself in the following:
- if another crime is committed, the presence of a criminal record will be reflected in the court verdict, which will lead to a more severe punishment (Articles 63, 68 of the Criminal Code of the Russian Federation);
- a criminal record also plays a role when assigning a convicted person a correctional facility (Articles 58, 83 of the Criminal Code of the Russian Federation);
- limits the use of amnesty and suspended sentences (Articles 75–76.1 of the Criminal Code of the Russian Federation);
The above consequences emphasize that a criminal record (expungement and expungement of a criminal record in particular) plays a significant role in the implementation of the constitutional rights of a citizen.
Conditions for expunging a criminal record
Clearance of a criminal record can be achieved in two ways - through expungement and through withdrawal. Both of these options involve the removal of all imposed restrictions and his full restoration of his rights. At the same time, this does not imply that when expunging or removing a criminal record, the fact of its existence in the past is not taken into account when imposing a penalty if the citizen is charged under the same criminal article or another again. If there is more than one criminal offense, the term of serving the sentence is calculated for each of them.
❌ Ban on holding public office
Reason: Art. 16 Federal Law “On the State Civil Service of the Russian Federation”, clause 3.2 of Art. 4 of the Federal Law “On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation.”
The bottom line. For persons with a criminal record, a lifelong ban on holding positions in certain areas of government activity is introduced.
Sometimes you can enter the civil service if your criminal record has been cleared or expunged. But the fact of having a criminal record when filling out an employment application should be indicated, since if false data is provided, the employment contract may be terminated.
Persons with a criminal record are limited in their passive voting rights - they cannot be elected to government bodies.
Do you think restrictions are needed for people with a criminal record?
No, not necessary Yes, such restrictions are necessary Difficult to answer
The concept of “expunged criminal record”
The expungement of a criminal record occurs immediately after a specific period has passed, in accordance with the law. This does not require a special decision from the court. When receiving a suspended sentence, the period of criminal record is absolutely similar to the assigned probation period.
If a suspended conviction is expunged, the citizen is released from the status of a convicted person. In other cases, the total term of all convictions and serving the sentence, as well as an additional one, if one was assigned, is calculated. It is determined by the period when a citizen is under special control after his release, which is determined depending on the severity of the act committed.
In the event that the convicted person has not been punished due to any circumstances beyond his control, he is considered not to have been convicted after the statute of limitations for the implementation of the sentence has expired.
Responsibility for illegal employment of convicted persons
A criminal background check when applying for a job is the responsibility of the employer. For failure to fulfill this obligation and illegal employment of convicted persons, the employer may be held accountable.
Judicial practice confirms the obligation of employers to check applicants for criminal records. For example, the Arbitration Court of the West Siberian District, in its resolution dated February 22, 2018 No. F04-210/2018, held the employer responsible for allowing persons to work in the field of transport security whose criminal records he did not have at the time of concluding the employment contract.
The individual entrepreneur was fined 30,000 rubles under Part 1 of Art. 11.15.1 of the Code of Administrative Offenses of the Russian Federation for admission to the position of an employee responsible for compliance with transport safety who has an outstanding criminal record. Such employment is expressly prohibited by clause 1, part 1, art. 10 of the Federal Law of 02/09/2007 No. 16-FZ “On Transport Security”. The individual entrepreneur, when hiring the citizen, did not know about his criminal record.
According to the court, the employer must have reliable information that the person hired does not have an outstanding conviction for committing an intentional crime. To do this, he must request from the employee a certificate of no criminal record (paragraph 7, part 1, article 65 of the Labor Code of the Russian Federation). The absence of such information by the employer does not relieve him of liability provided for by law.
Thus, an employer can and should require a certificate of no criminal record from a potential employee in cases where it is impossible to allow a person with a criminal record to work.
Procedure for calculating criminal records upon early release
When released from punishment before its official completion or as a result of changing the remaining term to a less severe measure, the remaining part of the term initially announced by the court is not included in the total term of the criminal record. This means that the duration of serving the sentence established by the Criminal Code is counted from the time when it was directly completed.
The duration of this period is assigned according to the measure initially specified in the text of the court decision. For example, after a certain period of punishment for criminal acts of not very serious gravity, part of the total sentence can be changed to a more lenient measure in the form of correctional labor. Thus, the entire term after serving the sentence will not be equal to 1 year if correctional labor had been assigned, but 3 years, that is, the period provided for a not very serious crime.
