1. A person convicted of committing a crime is considered to have a criminal record from the day the court’s conviction enters into legal force until the criminal record is expunged or removed. A criminal record in accordance with this Code is taken into account in case of recidivism of crimes, imposition of punishment and entails other legal consequences in cases and in the manner established by federal laws.
2. A person released from punishment is considered to have no criminal record.
3. A criminal record is expunged:
a) in relation to persons on probation - after the expiration of the probationary period;
b) in relation to persons sentenced to more lenient punishments than imprisonment - after one year after serving or executing the sentence;
c) in relation to persons sentenced to imprisonment for crimes of minor or medium gravity - after three years after serving the sentence;
d) in relation to persons sentenced to imprisonment for serious crimes - after eight years after serving the sentence;
e) in relation to persons convicted of especially serious crimes - after ten years after serving the sentence.
4. If a convicted person, in accordance with the procedure established by law, was released early from serving a sentence or the unserved part of the sentence was replaced with a milder type of punishment, then the period for expunging the criminal record is calculated based on the actually served term of the sentence from the moment of release from serving the main and additional types of punishment.
5. If the convicted person, after serving his sentence, behaved impeccably and also compensated for the damage caused by the crime, then, at his request, the court may remove his criminal record before the expiration of the criminal record expires.
6. Expungement or removal of a criminal record cancels all legal consequences provided for by this Code associated with a criminal record.
- Article 85. Pardon
- Article 87. Criminal liability of minors
Commentary to Art. 86 of the Criminal Code of the Russian Federation
A criminal record is a special legal status of a guilty person, generated by the fact of his conviction and sentencing for the crime committed. Having a criminal record entails adverse consequences of a criminal law and other nature for a person. Other consequences include the inability to engage in teaching activities in educational institutions, the inability to obtain a license to purchase weapons, a ban on holding certain positions, etc.
Among the consequences of a criminal law nature, the law includes the fact that a criminal record is taken into account when repeating crimes and when assigning punishment. The criminal legal significance of a criminal record also lies in the fact that the presence of a criminal record prevents the release of a person from criminal liability in connection with active repentance (Article 75 of the Criminal Code of the Russian Federation) and reconciliation with the victim (Article 76 of the Criminal Code of the Russian Federation) and release from punishment in connection with a change situation (Article 80.1 of the Criminal Code of the Russian Federation). A criminal record excludes the imposition of restriction of freedom on a person who has committed an intentional crime (clause “a”, Part 2, Article 53 of the Criminal Code of the Russian Federation).
When assigning punishment, a criminal record is not taken into account directly, but in connection with the recidivism of crimes. It is the relapse of crimes that is an aggravating circumstance (clause “a” of part 1 of Article 63 of the Criminal Code of the Russian Federation), and it is in the case of recidivism of crimes that special rules for sentencing are applied (Article 68 of the Criminal Code of the Russian Federation). The type of recidivism of crimes is taken into account when determining the type of correctional institution for those sentenced to imprisonment (clauses “b”, “c” and “d”, Part 1, Part 2, Article 58 of the Criminal Code of the Russian Federation).
The law (Part 1 of Article 18 of the Criminal Code of the Russian Federation) associates the presence of recidivism with an outstanding (unexpunged) criminal record at the time of the commission of the crime, and not at the time of prosecution or conviction. This was specifically addressed in the decision of the Presidium of the Supreme Court of the Russian Federation dated January 16, 2002.
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Bulletin of the Supreme Court of the Russian Federation. 2003. N 2. P. 16.
Not all convictions count towards recidivism. When recognizing a recidivism of crimes, convictions for reckless crimes are not taken into account; for intentional crimes of minor gravity; for crimes committed under the age of eighteen; for crimes for which the conviction was deemed suspended or for which a deferment of execution of the sentence was granted, if the suspended sentence or deferment of execution of the sentence was not canceled and the person was not sent to serve the sentence in a prison (Part 4 of Article 18 of the Criminal Code of the Russian Federation). Consequently, when recognizing the recidivism of crimes, the criminal records of persons who were given a suspended sentence or who were granted a deferment of execution of the sentence are also not taken into account if the punishment assigned to them was more lenient than imprisonment, regardless of whether the suspended sentence or deferment was canceled, since they were not sent to serve a sentence in prison. If the conditional sentence or deferment was canceled in connection with the commission of a new crime (Part 5 of Article 74, Part 4 of Article 82 of the Criminal Code of the Russian Federation) and the convicted person (convicted woman) was sentenced to imprisonment based on the totality of sentences, then In this case, we cannot talk about relapse of crimes.
Although these convictions are not taken into account when determining the recidivism of crimes, they can be taken into account when assigning punishment as information characterizing the personality of the perpetrator (Part 3 of Article 60 of the Criminal Code of the Russian Federation).
The fact that a criminal record is taken into account when sentencing is, in theory, a matter of debate. Does this provision violate Part 1 of Art. 86 of the Criminal Code of the Russian Federation the principle of non bis in idem, enshrined in Part 1 of Art. 50 of the Constitution of the Russian Federation and Part 2 of Art. 6 of the Criminal Code of the Russian Federation - “no one can be held responsible twice for the same crime”?
This issue was the subject of consideration by the Constitutional Court of the Russian Federation. The constitutionality of the provisions of paragraph “n” of Part 2 of Art. 105 and paragraph “c” of Part 3 of Art. 158 of the Criminal Code of the Russian Federation, in which repetition and criminal record were qualifying signs of a crime, as well as Art. Art. 16, 18 and 68 of the Criminal Code of the Russian Federation, establishing the criminal legal consequences of repetition and recidivism of crimes. In its Resolution No. 3-P of March 19, 2003, the Constitutional Court of the Russian Federation recognized these provisions as not contradicting the Constitution of the Russian Federation, since they do not allow repeated conviction and punishment for a crime for which a person has already been convicted, as well as double counting of a person’s criminal record simultaneously when qualifying a crime and imposing punishment. Although the Constitutional Court of the Russian Federation recognized the constitutionality of the challenged provisions, Federal Law of December 8, 2003 N 162-FZ Art. 16 of the Criminal Code of the Russian Federation was declared invalid, the wording of Art. Art. 18 and 68 of the Criminal Code of the Russian Federation, and in the articles of the Special Part of the Criminal Code of the Russian Federation, criminal record and repetition of crimes as qualifying signs of a crime were excluded.
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Bulletin of the Constitutional Court of the Russian Federation. 2003. N 3.
NW RF. 2003. N 50. Art. 4848.
The status of a criminal record is urgent; a person is considered to have a criminal record from the day the court’s conviction enters into legal force until the criminal record is expunged or removed. In accordance with Part 2 of Art. 47 of the Code of Criminal Procedure of the Russian Federation, the accused against whom a guilty verdict has been passed is a convicted person. The emergence of a criminal record is not associated with the moment of a person’s conviction, but with the moment the conviction comes into legal force. In accordance with Art. 390 of the Code of Criminal Procedure of the Russian Federation, the verdict of the court of first instance comes into force after the expiration of the period for appealing it in the appellate or cassation procedure (ten days). If the verdict has been appealed, it comes into force on the day the cassation ruling is issued. The status of a criminal record applies to the entire period of serving the sentence and for a certain period established by law after its completion.
The emergence of a criminal record is associated with the entry into force of not just a conviction, but a sentence with the imposition of punishment. A guilty person released from punishment is considered to have no criminal record (Part 2 of Article 86 of the Criminal Code of the Russian Federation). Thus, a person who has been released from punishment due to a change in the situation is not convicted (Article 80.1 of the Criminal Code of the Russian Federation). In Part 5 of Art. 302 of the Code of Criminal Procedure of the Russian Federation distinguishes two types of convictions with the imposition of punishment: 1) a verdict with the imposition of a sentence to be served by the convicted person; 2) a sentence with the imposition of punishment and release from serving it. The question of whether a criminal record is connected with the fact of imposing a sentence or with the fact of its actual serving is unresolved in theory and, accordingly, causes difficulties in practice.
Judicial practice is guided by the rule formulated in paragraph 5 of the Resolution of the Plenum of the Supreme Court of the USSR dated March 18, 1970 No. 4 (as amended and supplemented by the Resolutions of the Plenum of the Supreme Court of the USSR dated September 21, 1977 No. 11; dated April 26, 1984 No. 7): “When a guilty verdict is passed without imposing punishment, as well as with the release of a convicted person from punishment by virtue of an amnesty act or due to the expiration of a statute of limitations, the culprit, as having not served his sentence, is recognized as having no criminal record, regardless of the duration of pre-trial detention ". Thus, this paragraph of the Resolution connects the presence of a criminal record with the fact of serving (or not serving) a sentence. And the law, when establishing the terms for expunging a criminal record, speaks specifically about serving the sentence (Part 3 of Article 86 of the Criminal Code of the Russian Federation).
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Bulletin of the Supreme Court of the USSR. 1970. N 3.
Based on this rule, persons exempted from punishment are recognized as not having been convicted: due to a change in the situation (Article 80.1 of the Criminal Code of the Russian Federation); in connection with illness (Article 81 of the Criminal Code of the Russian Federation); due to the expiration of the statute of limitations for a court conviction (Article 83 of the Criminal Code of the Russian Federation); in order part 1 and 2 tbsp. 92 of the Criminal Code of the Russian Federation with the use of compulsory educational measures; by virtue of the amnesty act (Article 84 of the Criminal Code of the Russian Federation, paragraph 1, Part 6, Article 302 of the Criminal Procedure Code of the Russian Federation); upon expiration of the deferment of serving the sentence (Part 3 of Article 82 of the Criminal Code of the Russian Federation), as well as those exempted from punishment in the form of a fine or deprivation of the right to occupy certain positions or engage in certain activities in accordance with Part 5 of Art. 72 of the Criminal Code of the Russian Federation.
There are two exceptions to this rule, when persons who have not actually served their sentence are recognized as convicted. In the case of a suspended sentence, the criminal record is retained during the probationary period. When serving a sentence is deferred for pregnant women and women with young children, the convicted person is convicted for the entire period of deferment. This follows from Part 4 of Art. 82 of the Criminal Code of the Russian Federation: if during the deferment period the convicted woman commits a new crime, she is sentenced according to the rules of Art. 70 of the Criminal Code of the Russian Federation. These sentencing rules do not apply to persons without a criminal record. If, after the expiration of the deferment, the court replaces the remaining part of the sentence with a more lenient punishment, the criminal record is extended for the period of serving the more lenient sentence. After serving a more lenient sentence, the terms of expungement of a criminal record are calculated according to the rules for the punishment that was replaced. There is a certain conflict here - during the deferment period, the statute of limitations may expire and the convicted woman should be released from punishment and, accordingly, considered not to have a criminal record.
The question of the criminal record of persons released from punishment due to illness (parts 1 and 2 of Article 81 of the Criminal Code of the Russian Federation) is more complex. If the guilty person falls ill after committing a crime, but before the sentence is executed, he is released from punishment and is considered not to have been convicted. If a convicted person develops a mental disorder or falls ill with another serious illness that prevents him from serving his sentence, he is released from further serving the sentence, but remains convicted. Such release is conditional; if he recovers, the released person may be subject to punishment if the statute of limitations has not expired (Part 4 of Article 81 of the Criminal Code of the Russian Federation).
A serviceman released from further arrest or detention in a disciplinary military unit in the event of an illness making him unfit for military service remains convicted for a year after release. If a serviceman’s unserved part of the sentence is replaced with a more lenient type of punishment, he remains convicted for a year after serving the more lenient punishment (clause “b”, part 3 of article 86 of the Criminal Code of the Russian Federation).
The law provides for two ways to terminate a criminal record—expungement or expungement. Expungement means the automatic termination of a criminal record upon expiration of the period established by law after serving the sentence or expiration of the probationary period, without requiring any procedural actions. According to the Criminal Code of the Russian Federation, a conviction for any crime can be expunged, regardless of the punishment imposed and the identity of the convicted person. According to the Criminal Code of the RSFSR, the criminal record of persons sentenced to imprisonment for a term of over ten years and especially dangerous repeat offenders was not expunged, but could be expunged by the court on an individual basis after the expiration of the period established by law (Clause 8, Part 1, Article 57 of the Criminal Code of the RSFSR ).
In Part 4 of Art. 57 of the Criminal Code of the RSFSR provided that if a person who has served his sentence commits a crime again before the expiration of the criminal record, the period for expunging the criminal record is interrupted. The Criminal Code of the Russian Federation does not provide for interrupting the expiration of a criminal record by committing a new crime.
If a person commits several crimes, the terms for expunging a criminal record are calculated for each crime separately. Therefore, a situation is possible when, while serving a sentence, a convicted person expires the expiration date of his criminal record, which served as the basis for recognizing a recidivism of crimes and, accordingly, for assigning a type of correctional institution (a strict or special regime correctional colony).
In paragraph 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 12, 2001 N 14, it is explained that if, while serving a sentence for previously passed sentences, the expiration date for a criminal record for one or more crimes has expired, which was the basis for assigning the convict a strict or special correctional colony regime according to the last verdict, then the type of colony assigned by the court verdict is not subject to revision, and the person is not transferred to a correctional colony of another type.
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Bulletin of the Supreme Court of the Russian Federation. 2002. N 1.
When imposing punishment for a set of crimes or sentences, the expiration period for a criminal record is calculated after serving the final punishment (main and additional) for each crime separately.
The law establishes terms for expunging a criminal record depending on whether the imposed punishment is real or suspended, whether the sentence is imprisonment or a more lenient punishment. When serving imprisonment, the terms for expunging a criminal record are differentiated depending on the category of the crime committed. In the Criminal Code of the RSFSR, the terms for expunging a criminal record were differentiated depending on the assigned term of imprisonment (Part 1, Article 57 of the Criminal Code of the RSFSR).
In relation to conditionally convicted persons, a criminal record is expunged upon expiration of the probationary period (clause “a”, part 3, article 86 of the Criminal Code of the Russian Federation). In accordance with Part 4 of Art. 73 of the Criminal Code of the Russian Federation, with a suspended sentence, additional types of punishment may be imposed. If the probationary period is equal to or less than the term of the additional sentence, the conditionally convicted person is considered to have been convicted within a year after serving the additional sentence (clause “b”, part 3 of article 86 of the Criminal Code of the Russian Federation).
In relation to persons sentenced to more lenient punishments than imprisonment, the criminal record is expunged after one year after serving the sentence (clause “b”, part 3 of article 86 of the Criminal Code of the Russian Federation).
If a person sentenced to a fine, compulsory or correctional labor maliciously evades serving the sentence, the court may replace the imposed punishment with a more severe one, including imprisonment (Part 5 of Article 46, Part 3 of Article 49, Part 4 of Art. 50 of the Criminal Code of the Russian Federation). In this case, the period for expunging a criminal record begins to run after serving a more severe sentence, and it must be calculated according to the rules for the imposed punishment. This follows from paragraph 1 of the already mentioned Resolution of the Plenum of the Supreme Court of the USSR dated March 18, 1970. For example, the sentence imposed on a person sentenced to correctional labor was replaced by six months of imprisonment. This person's criminal record will be expunged after one year after serving the imprisonment.
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Bulletin of the Supreme Court of the USSR. 1970. N 3.
For sentences that are not urgent, the expiration date of the criminal record begins to run after their execution. The penalty in the form of a fine is considered executed when the entire amount of the fine is paid; punishment in the form of deprivation of a special, military or honorary title, class rank and state awards - at the moment the sentence enters into legal force.
In relation to persons sentenced to imprisonment, differentiated terms for expunging a criminal record after serving the sentence are established depending on the category of the crime committed (clauses “c”, “d” and “d”, part 3 of article 86 of the Criminal Code of the Russian Federation). These terms are respectively equal to: three years - for committing a crime of minor or medium gravity; six years - for serious crimes; eight years - for especially serious crimes.
Paragraph “e” of Part 3 of the commented article refers to persons “convicted of especially serious crimes.” But in fact, what is meant here are persons sentenced to imprisonment for especially serious crimes. If a person is convicted of a particularly serious crime and he is in accordance with Part 1 of Art. 64 of the Criminal Code of the Russian Federation was assigned a more lenient punishment than imprisonment; his criminal record is expunged in accordance with paragraph “b” of Part 3 of Art. 86 of the Criminal Code of the Russian Federation - one year after serving the sentence.
If a person sentenced to restriction of freedom, arrest, detention in a disciplinary military unit or imprisonment is given an additional punishment in the form of deprivation of the right to hold certain positions or engage in certain activities, the term of the additional punishment is calculated accordingly from the day the convicted person is released from the correctional center, arrest house, disciplinary military unit or a correctional institution (Part 2 of Article 36 of the Penal Code of the Russian Federation). In this case, the terms for expunging a criminal record begin to run after serving the additional sentence and are calculated according to the rules of paragraphs “b”, “c”, “d” or “e” of Part 3 of Art. 86 of the Criminal Code of the Russian Federation.
In relation to persons who were early released from serving a sentence or for whom the unserved part of the sentence was replaced by a more lenient type of punishment, the period for expunging a criminal record is calculated based on the actually served term of the sentence from the moment of release from serving the main and additional punishment (Part 4 of Article 86 of the Criminal Code of the Russian Federation) . The general rule applies here: the terms for expunging a criminal record are calculated from the moment the entire sentence (main and additional) is served.
If the unserved part of the imposed punishment was replaced by a more lenient punishment, the period for expunging the criminal record is calculated from the moment the more lenient punishment was served, but according to the rules relating to the punishment that was replaced.
The second way to end a criminal record is to have it expunged. Expungement of a criminal record means the cancellation of the legal consequences of a criminal record before its expiration date. The possibility of expunging a criminal record is not related to either the category of the crime committed or the type of sentence served. The condition for the removal of a criminal record is the impeccable behavior of the person who has served his sentence (Part 5 of Article 86 of the Criminal Code of the Russian Federation). Therefore, if a convicted person commits a crime, the terms of expiration of the criminal record are not interrupted, but it cannot be removed.
The removal of a criminal record is usually carried out at the request of a person who has served his sentence. The procedural procedure for considering a request to expunge a criminal record is defined in Art. 400 Code of Criminal Procedure of the Russian Federation. In the event of a suspended sentence, a criminal record can be overturned by the court upon the proposal of the criminal-executive inspection, if the court decides to cancel the suspended sentence (Part 1 of Article 74 of the Criminal Code of the Russian Federation). The suspended sentence may be revoked after the expiration of at least half of the established probation period.
A criminal record can also be cleared by acts of amnesty or pardon.
Expungement or expungement of a criminal record cancels all legal consequences associated with a criminal record. When committing a new crime, a person with an expunged (removed) criminal record is considered to have committed a crime for the first time. But the presence of a criminal record in the past can be taken into account when characterizing the personality of the perpetrator.
Expungement or expungement of a criminal record does not cancel all legal restrictions. For example, persons who have or have had a criminal record cannot be recruited to serve in the police (Article 19 of the Law of the Russian Federation of April 18, 1991 N 1026-1 “On the Police”) and the prosecutor’s office (Article 40.1 of the Law of the Russian Federation of January 17, 1992 N 2202-1 “On the Prosecutor’s Office of the Russian Federation”).
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Gazette of the SND and the Supreme Soviet of the RSFSR. 1991. N 16. Art. 503.
NW RF. 1995. N 47. Art. 4472.
Judicial practice under Article 86 of the Criminal Code of the Russian Federation
Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 16, 2017 N 15
24. It must be borne in mind that administrative supervision can be established in relation to an adult who has an outstanding or unexpunged conviction for committing a serious or especially serious crime or a crime in the event of a repeat crime, for a period of from one year to three years, but not more than the period established by the legislation of the Russian Federation for expunging a criminal record (clause 1 of part 1 of article 5 of the Law, articles and 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 01.08.2018 N 5-APU18-29SP
Thus, based on the provisions of Part 6 of Article of the Criminal Code of the Russian Federation, if at the time the defendant committed the crime of which he is accused in a criminal case considered by the court, his convictions were withdrawn or expunged, then the court does not have the right to mention them in the introductory part of the sentence.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated May 22, 2018 N 36-APU18-2
In his appeal, State Prosecutor A.V. Bortnikov, without challenging the factual circumstances of what the convicts established by the court, points out that the court, when imposing punishment, in violation of the provisions of Part 6 of Art. The Criminal Code of the Russian Federation incorrectly took into account the expunged criminal records of convicted persons as negatively characterizing data.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 28, 2018 N 46-UD18-37
In accordance with clause “d”, part 3 of Art. The Criminal Code of the Russian Federation as amended in force at the time Kulikov committed the crime under Part 1 of Art. 111 of the Criminal Code of the Russian Federation, for which he was convicted by verdict of November 17, 2006, criminal records were expunged in relation to persons sentenced to imprisonment for serious crimes after six years after serving the sentence.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 28, 2018 N 78-APU18-15
As explained in paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2021 N “On the Judicial Sentence”, if at the time the defendant committed the crime of which he is accused in a criminal case before the court, his convictions were cleared or expunged, then the court, Based on the provisions of Part 6 of Article of the Criminal Code of the Russian Federation, he has no right to mention them in the introductory part of the sentence.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated 09/05/2018 N 5-APU18-41
In accordance with Part 3 of Art. Under the Criminal Code of the Russian Federation, a criminal record is expunged in relation to persons sentenced to imprisonment for crimes of minor or moderate gravity - after three years after serving the sentence. In relation to Gulyaev V.V., convicted on February 26, 2009 by the verdict of the magistrate of judicial district N ... of the Leninsky district of Ulyanovsk for committing three crimes of minor gravity and by the verdict of the Leninsky district court of Ulyanovsk dated July 30, 2009 for committing minor and of medium gravity, the convictions have been expunged, and therefore references to the above convictions are subject to exclusion from the introductory part of the sentence.
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 13, 2018 N 36-UD18-6
In accordance with clause “d”, part 3 of Art. of the Criminal Code of the Russian Federation, which was in force at the time of conviction and the decision to release T.S. Chepushtanova on parole. from punishment, criminal records were expunged in relation to persons sentenced to imprisonment for serious crimes - after 6 years after serving the sentence.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated January 24, 2019 N 67-APU19-1
Kazakov was also convicted on August 6, 2008, including for committing a serious crime under Art. 226 part 1 of the Criminal Code of the Russian Federation. This criminal record by virtue of paragraph “g” of Part 2 of Art. The Criminal Code of the Russian Federation (as amended on June 13, 1996) was extinguished in September 2021, after 6 years after Kazakov served his sentence, that is, before he committed the crime in this case and also cannot be taken into account to determine the recidivism of crimes.
Cassation ruling of the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation dated January 30, 2019 N 51-КГ18-16
According to paragraph “d” of part three of article of the Criminal Code of the Russian Federation, in relation to persons sentenced to imprisonment for serious crimes, a criminal record is expunged after eight years after serving the sentence. In this situation, the Judicial Collegium for Administrative Cases of the Supreme Court of the Russian Federation, the conclusion of the court of first instance on the sufficiency of the data in the verdict of the Central District Court of Barnaul dated August 12, 2015, about the commission of D.A. Smirnov. considers the crime in case of especially serious recidivism correct, and the period of administrative supervision assigned to him is justified.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 13, 2019 N 49-APU19-1
In accordance with the explanations of the provisions of the criminal procedural law set out in paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 55 of November 29, 2021 “On the Judicial Sentence”, if at the time the defendant committed the crime of which he is accused in the criminal case before the court, his convictions were removed or expunged, then the court, based on the provisions of Part 6 of Art. The Criminal Code of the Russian Federation has no right to mention them in the introductory part of the sentence.
Determination of the Constitutional Court of the Russian Federation dated February 28, 2019 N 538-O
In accordance with the article of the Criminal Code of the Russian Federation, a person convicted of committing a crime is considered to have a criminal record from the day the court’s conviction enters into legal force until the criminal record is expunged or removed; a criminal record is taken into account for recidivism of crimes, imposition of punishment and entails other legal consequences in cases and in the manner established by federal laws (part one); expungement or removal of a criminal record cancels all legal consequences provided for by criminal law related to a criminal record (part six). In addition, in accordance with paragraph “c” of part four of Article of the Criminal Code of the Russian Federation, convictions expunged or expunged in the manner established by Article 86 of this Code are not taken into account when recognizing recidivism of crimes.
Collection of evidence by a lawyer in accordance with Art. 86 Code of Criminal Procedure of the Russian Federation
The current criminal procedural legislation grants the defender of the accused (suspect) certain rights to collect evidence. In accordance with paragraph 2 of part one of Article 53 of the Code of Criminal Procedure of the Russian Federation, the defense attorney is given the right to collect and present evidence necessary to provide legal assistance in the manner established by criminal procedure legislation. Part 3 of Article 86 of the Code of Criminal Procedure of the Russian Federation provides a list of procedural actions aimed at collecting evidence in the course of providing legal assistance in a criminal case, which the defense attorney has the right to carry out. They essentially differ from the actions carried out by the preliminary investigation authorities and the court when collecting evidence. These are: obtaining items, documents and other information (clause 1), interviewing persons with their consent (clause 2) and requesting certificates, characteristics and other documents from various bodies, associations and organizations (clause 3). Similar rights are granted to the lawyer pp. 1-3 parts 3 tbsp. 6 of the Federal Law of the Russian Federation “On advocacy and advocacy in the Russian Federation” (hereinafter referred to as the Federal Law).
When developing and adopting the current Criminal Procedure Code, the legislator, having established the indicated means of collecting evidence in a criminal case, did not establish a procedural procedure for carrying out these actions, which in practice causes controversy and entails unreasonable decisions to refuse to include the evidence collected by the lawyer in the case materials from the outside. interrogators, investigators, prosecutors and courts, and assessing them in conjunction with other evidence collected in the case. At the same time, as the practice of advocacy has shown, the considered methods of collecting evidence are used by lawyers quite widely, and therefore there is a need to give these methodological recommendations.
When collecting evidence, you should first of all take into account the requirements of Art. Art. 74 and 75 of the Code of Criminal Procedure of the Russian Federation, establishing the concept, properties and types of evidence. In addition, it is necessary to keep in mind the forms of their procedural consolidation. Since the current Code of Criminal Procedure of the Russian Federation does not provide for procedural documents that would record the actions and decisions of a lawyer during the collection of evidence (resolution, protocol), they must comply in form and content with the requirements of Art. 84 Code of Criminal Procedure of the Russian Federation.
Recommended procedure for recording the actions of a lawyer in collecting evidence in a criminal case and their results:
Receiving items, documents and other information
In criminal proceedings, preliminary investigation bodies obtain items relevant to the case through seizure. The law does not grant such authority to a lawyer. Therefore, if necessary, it is recommended to obtain such items only on a voluntary basis and based on the consent of the owner.
It appears that for this purpose the lawyer needs to obtain a written statement from the owner of the item. The application is recommended to reflect, in addition to the mandatory details, the following: when and under what circumstances he received this item, its distinctive features, why he wants to hand it over to a lawyer and for what purposes, whether this delivery was made voluntarily and whether him any coercive measures in order to obtain the item. If necessary, the signature of the person submitting the application is recommended to be notarized.
The procedure for the voluntary transfer of an item from the owner to a lawyer can be carried out in the presence of at least two citizens, who must attest to the fact and results of the voluntary transfer of the item. If it is necessary to use special knowledge when receiving or inspecting an item, a specialist may be invited to participate in this procedural action. This authority is established in clause 3, part 1, art. 53 Code of Criminal Procedure of the Russian Federation. The progress and results of obtaining the item can be recorded using photo, audio and video equipment. After receiving the item, the lawyer, in the presence of its owner and witnesses, if necessary with the participation of a specialist, must examine the item in detail and identify its characteristic features and traces.
At the end of this procedural action, it is necessary to draw up a document that reflects the grounds, progress and results of receiving the item. It seems that such a document could be the “Protocol for Receiving an Item.” It is recommended to indicate the following information in the act: the time and place of receipt of the item, who carried out this action, on the basis of which the item was received, with the participation of which persons the item was received and inspected, what technical means were used in this case, what item was received, the results his inspection, whether the item was packaged and how, how the item was sealed. All participants in the issuance and receipt of the item must be familiarized with the act; after familiarization, all participants are explained the right to make additions and comments, after which they sign the act. The act must be accompanied by the received item, audio, photo and video materials recording the progress and results of its implementation, which is noted in the act itself.
Considering the powers of a lawyer to obtain documents and other information that may be evidence in a criminal case, it is obvious that in this case we mean cases where they are in the custody or possession of citizens or commercial organizations that are not required by law to provide documents or copies thereof at the request of lawyers in accordance with clause 3, part 3, art. 86 Code of Criminal Procedure of the Russian Federation. The procedural procedure for receiving them should be the same as for receiving items, as described above.
Interviewing persons with their consent
It should be noted that there are a significant number of publications on this issue in various printed publications.
Survey, as provided for in clause 3, part 3, art. 86 of the Code of Criminal Procedure of the Russian Federation, is carried out only with the consent of the person whom the need arose to interview. The survey itself, it seems, can be framed in the form of answers to specific questions, or in the form of a free story with clarifying questions at the end. The question of the possibility of committing the action in question after the interrogation of the same person by the investigator as a witness, victim, accused or suspect deserves special attention. It seems that such an interrogation is possible only if during their interrogations all the issues that are essential to the case were not clarified. It is proposed to record the progress and results of the survey in a special document, for example, calling it “Protocol of interviewing a person with his consent.” It is not recommended to call it a protocol, because The Code of Criminal Procedure of the Russian Federation provides for the preparation of such a procedural document based on the results of procedural actions carried out by investigative authorities. When drawing up an act, it can be classified as other documents, as a type of evidence provided for in paragraph 6 of Part 2 of Art. 74 of the Code of Criminal Procedure of the Russian Federation and meeting the requirements of Art. 84 of the same Code.
The act must reflect the following data: information about the lawyer who conducted the survey, indicating the legal education, the bar association of the constituent entity of the Russian Federation in which this lawyer is listed, his number in the relevant register and the number of the order on the basis of which he carries out the assignment in this case; last name, first name, patronymic, date and place of birth of the person being interviewed, his place of residence, place of work, position, home and work telephone numbers, information about documents proving his identity, relationship to the accused and the victim; mark indicating consent to the survey. The act of interrogation, it seems, must meet the requirements for the protocol of interrogation of a witness (Articles 189-191 of the Code of Criminal Procedure of the Russian Federation).
Requesting certificates, characteristics, and other documents from state authorities, local governments, public associations and organizations that are obliged to provide the requested documents or copies thereof.
The considered norm of the Code of Criminal Procedure of the Russian Federation has been used previously. However, such a right, outside of participation in legal proceedings in a criminal case, was exercised in the form of sending a petition or request on behalf of the bar association or legal advice, which was signed by the relevant head. The current Code of Criminal Procedure of the Russian Federation grants this right directly to the lawyer. It is recommended to exercise this right by sending it to the persons specified in Art. 86 of the Code of Criminal Procedure of the Russian Federation, bodies and organizations make requests for the purpose of obtaining the documents specified therein. When sending a request, it is permissible to use legal education forms of the established form. If necessary, they can be certified by the seal of the relevant legal entity. Requests requiring necessary documents must be motivated. It is also advisable to indicate the time frame for resolving it with reference to the current legislation on the procedure for resolving citizens' appeals.
The question of the procedure for attaching to the materials of a criminal case received in accordance with paragraph 3 of Part 3 of Art. 86 of the Code of Criminal Procedure of the Russian Federation of objects, documents, certificates and other information.
For this purpose, it is recommended to send a written reasoned petition to the preliminary investigation authorities or to the court, in which the following documents should be indicated as an attachment: an application for the voluntary release of an item, relevant acts of receipt, the items themselves, documents, certificates and other information. In case of refusal to accept an application, it should be borne in mind that in accordance with Art. 120 of the Code of Criminal Procedure of the Russian Federation in any case, even if it is refused, is subject to inclusion in the materials of the criminal case, and since the received item, as well as certificates, documents and other information are annexed to the petition, they are subject to inclusion in the same materials of the case.
