Article 161. Inadmissibility of disclosure of preliminary investigation data

1. Data from the preliminary investigation are not subject to disclosure, except for the cases provided for in part three of this article.

2. The investigator or inquiry officer warns participants in criminal proceedings about the inadmissibility of disclosing without appropriate permission the data of the preliminary investigation that has become known to them, for which they sign a warning with a warning of liability in accordance with Article 310 of the Criminal Code of the Russian Federation.

3. Preliminary investigation data may be made public only with the permission of the investigator, interrogating officer and only to the extent that they consider it permissible, if the disclosure does not contradict the interests of the preliminary investigation and 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, as well as data on the private life of a minor victim under the age of fourteen, without the consent of his legal representative is not allowed.

What remains of the mystery of the investigation

Quite a lot has been said and written about attorney-client secrecy, but as for investigative secrecy, domestic science informs us quite sparsely about this. At the same time, the study of this topic in the context of the emergence of new judicial precedents becomes relevant for lawyers. Investigative secrecy is not one of the concepts that are used in the Code of Criminal Procedure of the Russian Federation and are listed in Article 5; at the same time, the secret of investigation is not a principle of criminal proceedings, which are set out in Chapter 2 of the Code of Criminal Procedure of the Russian Federation.

In general, in the criminal procedural law such a term as investigative secrecy is not fixed. The only procedural rule in force is provided for in Part 3 of Article 161 of the Code of Criminal Procedure of the Russian Federation, according to which the data of the preliminary investigation can be made public only with the permission of the prosecutor, investigator, inquirer and only to the extent that they consider this permissible, if the disclosure does not contradict interests of the preliminary investigation and is not associated with a violation of the rights and legitimate interests of participants in criminal proceedings (Part 3 of Article 161 of the Code of Criminal Procedure).

The Decree of the President of the Russian Federation “On approval of the list of confidential information” (as amended by Decree of the President of the Russian Federation dated September 23, 2005 No. 1111) contains a list of confidential information, where clause 2 indicates information that constitutes the secret of investigation and legal proceedings, as well as information about protected persons and measures of state protection carried out in accordance with Federal Law of August 20, 2004 N 119-FZ “On state protection of victims, witnesses and other participants in criminal proceedings” and other regulatory legal acts of the Russian Federation.

It is important to note that the law does not contain a list of information constituting an investigative secret. This means that the investigator or person conducting the inquiry has the discretion to determine what information about the preliminary investigation can be specifically protected and what cannot.

Obviously, for lawyers, operational awareness of certain information from a criminal case is of fundamental importance, since it will allow them to more effectively fulfill their defensive mission.

By the method of exclusion, relying on the norms of the Code of Criminal Procedure of the Russian Federation and precedents of the Constitutional Court of the Russian Federation, we can determine what information or documents do not belong to investigative secrets: First , these are decisions of the investigator (inquiry officer) made during criminal proceedings, which the accused has the right to become familiar with due to the requirements Code of Criminal Procedure of the Russian Federation. (Resolution to initiate a criminal case - Article 146 part 4 of the Code of Criminal Procedure of the Russian Federation, resolution to conduct a search (seizure) - 182 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, resolution to bring as an accused - Art. 172, Part 8 of the Code of Criminal Procedure of the Russian Federation, etc.) Second , this is a resolution to extend the period of the preliminary investigation. In accordance with Article 162 Part 8 of the Code of Criminal Procedure of the Russian Federation: “The investigator notifies in writing the accused and his defense attorney, as well as the victim and his representative about the extension of the period of the preliminary investigation.” At the same time, the Constitutional Court of the Russian Federation allowed the accused to familiarize themselves with the decision to extend the period of the preliminary investigation. So, according to the Determination of the Constitutional Court of the Russian Federation dated December 18, 2003. No. 429-O on the complaint of citizens Berezovsky B.A., Dubov Yu.A. and Patarkatsishvili A.Sh. to violation of their constitutional rights by the provisions of Articles 47, 53, 162 and 195 of the Code of Criminal Procedure of the Russian Federation: “The provisions of Articles 47, 53, part eight of Article 162 and part one of Article 195 of the Code of Criminal Procedure of the Russian Federation - in their constitutional and legal meaning - do not interfere with the accused whose rights are affected by the decisions of the preliminary investigation authorities on extending the terms of the preliminary investigation and on the appointment of a forensic examination, and their defenders in familiarizing themselves with such decisions, and also do not exclude the need to provide the named participants in the proceedings with data on circumstances significant for appealing these decisions.” Third , the arrest report, protocols of investigative actions carried out with the participation of the suspect, accused, other documents that were presented or should have been presented to the suspect, accused (clause 6 of part one of Article 53 of the Code of Criminal Procedure of the Russian Federation). Fourth , these are decisions on the appointment of forensic examinations and expert opinions, with which the accused has the right to become acquainted. (Article 195, part 3, Article 198 of the Code of Criminal Procedure of the Russian Federation) By virtue of the requirements of Article 47, part 4, paragraph 11 of the Code of Criminal Procedure of the Russian Federation: “The accused has the right to get acquainted with the decision on the appointment of a forensic examination, pose questions to the expert and get acquainted with the expert’s conclusion.” Fifth , these are court decisions to carry out operational search activities against a citizen. As the Constitutional Court of the Russian Federation indicated in paragraph 6 of the Determination of July 14, 1998 N 86-O “In the case of verifying the constitutionality of certain provisions of the Federal Law “On Operational-Investigative Activities” on the complaint of citizen I.G. Chernova: “In a procedure in which judicial permission to conduct operational-search activities is sought, the person being checked is not a participant in the process and should not know about it. There cannot be openness, transparency and competitiveness of the parties in this process, because otherwise, operational investigative activities that are secret in nature would simply become impossible, and the operational investigative activity itself would lose its meaning. That is why the court decision is issued to the body that initiated the operational investigative measures and is not issued to the person being inspected.” In connection with the above, the defense will be able to familiarize itself with the decisions on conducting operational investigative measures after a certain time. According to the Determination of the Constitutional Court of the Russian Federation dated April 16, 2009. No. 565-О-О “On the refusal to accept for consideration the complaint of citizen Igor Nikolaevich Rodionov about the violation of his constitutional rights by the provisions of Articles 3 and 12 of the Federal Law “On Operational-Investigative Activities”: “The accused can exercise his right to familiarize himself with the court decision on carrying out operational investigative activities against him in accordance with paragraph 12 of part four of Article 47 of the Code of Criminal Procedure of the Russian Federation (Determination of the Constitutional Court of the Russian Federation of December 21, 2006 N 590-O), as well as by sending a request to the body carrying out operational investigative activities, where in accordance with the law, such a document is stored (Definition of the Constitutional Court of the Russian Federation of June 24, 2008 N 356-О-О).” Part two of Art. 5 of the Federal Law “On Operational Investigative Activities” provides a person, if he only believes that the actions of the bodies carrying out operational investigative activities have led to a violation of his rights and freedoms, the right to appeal these actions to a higher authority carrying out operational investigative activities, prosecutor or court. If there are no grounds for initiating a criminal case, operational investigative activities are subject to termination, which allows the person being inspected, in accordance with the third part of Article 5, to request information about him, including the decision made to conduct an operational investigation, and in case of refusal, to appeal it to the court. Sixth, all materials presented to the court by the investigator and prosecutor when considering issues of detention and extension of the term of detention of the accused (removal from office). According to the Decree of the Constitutional Court of the Russian Federation of May 12, 2003. No. 173-O “According to the complaint of citizen Koval S.V. for violation of his constitutional rights by the provisions of Articles 47 and 53 of the Code of Criminal Procedure of the Russian Federation": "The provisions of paragraph 12 of part four of Article 47 and paragraph 7 of part one of Article 53 of the Code of Criminal Procedure of the Russian Federation - according to the constitutional and legal meaning identified in this Definition on the basis of the legal positions expressed in rulings of the Constitutional Court of the Russian Federation that remain in force, do not prevent the accused, whose rights and freedoms are affected by court decisions on choosing a preventive measure in the form of detention or on extending the period of detention, and their defenders, from familiarizing themselves with the materials on the basis of which decisions are made these decisions.” In accordance with paragraph 4 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 5, 2004. No. 1 “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation”: “To the petition for choosing a preventive measure in the form of detention (Part 3 of Article 108 of the Code of Criminal Procedure of the Russian Federation), copies of decisions to initiate a criminal case and bring a person as an accused should be attached, copies protocols of detention, interrogation of the suspect, accused, as well as evidence available in the case confirming the presence of circumstances indicating the need to choose a preventive measure for the person in the form of detention (information about the identity of the suspect, accused, certificates of criminal record, data on the person’s ability to escape from investigation , about threats against victims, witnesses, etc.)". The court, which makes a decision on choosing detention in relation to a suspect as a preventive measure, has the responsibility to assess the validity of the suspicion that this person has committed a crime in connection with which he is taken into custody. As the European Court of Human Rights has emphasized in its decisions, the requirement that suspicion be formed on reasonable grounds, with facts or information convincing an objective observer that the suspect may have committed a crime, is an integral part of the guarantees against arbitrary arrest or detention (Judgment of 30 August 1990 in the case of Fox, Campbell and Hartley v. the United Kingdom, of 28 October 1994 in the case of Murray v. the United Kingdom, of 19 May 2004 in the case of Gusinsky v. the Russian Federation, decision of February 28, 2002 on the issue of the admissibility of the complaint filed by V.M. Labzov against the Russian Federation). In practice, the validity of suspicions is often proven by the investigator submitting to the court protocols of interrogations of the victim and witnesses, which the defense can review. Seventh , the materials that served as the reason and basis for initiating a criminal case, submitted to the court in the event of filing a complaint in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation for the illegal initiation of a criminal case. In accordance with paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009. No. 1 “On the practice of courts considering complaints in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation”: “When considering the arguments of a complaint against a decision to initiate a criminal case, the judge should check whether the procedure for making this decision was followed, whether the official who made the relevant decision had the necessary powers, are there reasons and grounds for initiating a criminal case, are there any circumstances that exclude proceedings in the case.” According to paragraph 12 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated February 10, 2009. No. 1 “On the practice of courts considering complaints in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation”: “Persons participating in a court hearing have the right to familiarize themselves with the materials of the proceedings on the complaint, as well as submit to the court additional materials related to the complaint.” When the court considers a complaint, the investigator, in support of the legality of initiating a criminal case, may also present the results of operational investigative activities, which the defense will have the right to become familiar with. Eighth , information about the persons conducting the preliminary investigation in a criminal case and the composition of the investigative team. In accordance with Article 163, Part 2 of the Code of Criminal Procedure of the Russian Federation: “The composition of the investigative team is announced to the suspect or accused.” Ninth, information about the experts and the expert institution, as well as data confirming the expert’s qualifications. So, according to the Determination of the Constitutional Court of the Russian Federation dated December 18, 2003. No. 429-O on the complaint of citizens Berezovsky B.A., Dubov Yu.A. and Patarkatsishvili A.Sh. for violation of their constitutional rights by the provisions of Articles 47, 53, 162 and 195 of the Code of Criminal Procedure of the Russian Federation: “Having recognized the need for a forensic examination, the investigator, in accordance with part one of Article 195 of the Code of Criminal Procedure of the Russian Federation, makes a resolution in which the surname, name and patronymic of the expert are mandatory indicated or the name of the expert institution in which the forensic examination should be carried out. This article does not require any other information about the expert to be indicated in the resolution. Meanwhile, these legal provisions do not exclude the need, including in the case of entrusting the examination to a person who does not work in a state expert institution, for special confirmation of the expert’s qualifications (which may be subject to challenge by participants in the proceedings) and the possibility of reflecting the relevant data in the decision on the appointment of the examination.” Thus, the defense has the right to get acquainted with part of the information from the criminal case on the basis of a direct indication in the Code of Criminal Procedure of the Russian Federation, and part of it will be able to become familiar with it artificially through the procedures of judicial consideration of the investigator’s petitions or its own complaints filed in accordance with Article 125 of the Code of Criminal Procedure of the Russian Federation.

What remains of the investigative secret after its consistent sequestration by the Constitutional Court of the Russian Federation:

• Testimony of the victim and witnesses (prosecution and defense).

It would seem that the secrecy of the investigation extends to the indicated incriminating evidence, and without confrontation with the accused, the defense will be able to familiarize itself with it only in accordance with Article 217 of the Code of Criminal Procedure of the Russian Federation. However, as it turns out, procedural law is fraught with unexplored procedural possibilities. So, in accordance with clause 5, 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, the defense attorney has the right to participate in the interrogation of the suspect, accused, as well as in other investigative actions carried out with the participation of the suspect, accused or at his request, or at the request of the defense attorney himself in the manner established by this Code “Taking into account the grammatical interpretation of the above procedural norm, the defense attorney has the right to participate in all investigative actions carried out at his request, including interrogations of witnesses, if the investigator satisfies such a request.
This is also indicated by a systemic analysis of “related” norms: – in accordance with clause 10, part 4, art. 47 of the Code of Criminal Procedure of the Russian Federation: “The accused has the right to participate, with the permission of the investigator, in investigative actions carried out at his request or at the request of his defense attorney or legal representative, to familiarize himself with the protocols of the investigative action and to submit comments on them”; – in accordance with clause 9, part 4, art. 46 of the Code of Criminal Procedure of the Russian Federation: “A suspect has the right to participate, with the permission of an investigator or interrogating officer, in investigative actions carried out at his request, the request of his defense attorney or legal representative”; – in accordance with clause 10, part 4, art. 44 of the Code of Criminal Procedure of the Russian Federation: “A civil plaintiff has the right to participate, with the permission of an investigator or inquiry officer, in investigative actions carried out at his request or at the request of his representative”; – in accordance with clause 9, part 2, art. 42 of the Code of Criminal Procedure of the Russian Federation: “The victim has the right to participate, with the permission of the investigator or inquiry officer, in investigative actions carried out at his request or at the request of his representative.”

Based on the stated procedural rules, the defense attorney has the right to request a confrontation with the victim or witness, as well as the interrogation of defense witnesses, and if these requests are granted, the defense attorney has the right to personally participate in these investigative actions. Despite the fact that clause 5, part 1, art. 53 of the Code of Criminal Procedure of the Russian Federation does not provide for a defense lawyer to obtain permission from an investigator (inquirer) to participate in investigative actions carried out at the request of the suspect, accused or at the request of the defense lawyer himself; it is unlikely that investigators (investigators) will allow a lawyer to participate in the questioning of witnesses, fearing a violation of the so-called secrecy of the investigation.

In response to this, lawyers are given the opportunity to judicially appeal against such actions of the investigator in accordance with Art. 125 of the Code of Criminal Procedure of the Russian Federation to try to activate an important procedural norm. It is well known that the investigator, as a rule, bases the decision to charge as an accused on the testimony of the victim and prosecution witnesses. The investigator, hiding the testimony of the victim and witnesses under the curtains of investigative secrecy, unwittingly reveals them after the accusation is filed. In other words, the investigative secrecy regarding the main incriminating evidence is quite conditional.

• A protocol for the examination of material evidence and a decision on its inclusion in the case, as well as material evidence.

It should be noted that the inspection protocol can hardly represent an investigative secret, since the defense often learns about the material evidence in the case when a forensic examination is ordered, and the inspection, as a rule, is carried out after receiving an expert’s opinion, which could also be familiarized with. The Code of Criminal Procedure of the Russian Federation does not provide for the right for the accused and his defense attorney to familiarize himself with this protocol immediately after its preparation, which seems incorrect.

• Results of operational search activities.

The defense has the right to familiarize itself with the results of the operational investigation only after presenting all the materials of the criminal case for review in accordance with Article 217 of the Code of Criminal Procedure of the Russian Federation. Here we are faced with the obvious imperfection of procedural law. Thus, many of the evidence obtained after the initiation of a criminal case through investigative means can be familiarized with during the preliminary investigation. And operational findings that do not meet the requirements for evidence must be discovered at the very end of the investigation. The results of operational-search activities with the support of the courts have acquired a preferential evidentiary regime: they are obtained even before the initiation of a criminal case, secretly from the future suspect, in violation of his rights to defense and to timely appeal, and become the property of the accused when the preliminary investigation has already been completed. These results can only be challenged in court.

• Petitions from the investigator and court decisions to seize postal and telegraph shipments (Article 185 of the Code of Criminal Procedure of the Russian Federation) and to wiretap telephone and other conversations (Article 186 of the Code of Criminal Procedure of the Russian Federation).

Classic examples of maintaining investigative secrecy.
The defense has the right to become familiar with the results of these investigative actions upon completion of the preliminary investigation. Any other approach would negate their procedural purpose. An investigative secret, as a rule, ceases to exist at the moment the accused and his defense attorney familiarize themselves with the materials of the criminal case in accordance with Article 217 of the Code of Criminal Procedure of the Russian Federation, except for those cases when the investigator in the protocols of investigative actions does not provide information about the identity of the victim or witness for the need to provide them security. (Article 166 Part 9 of the Code of Criminal Procedure of the Russian Federation).

The main conceptual rule defining the boundaries of investigative secrecy was formulated by the Constitutional Court of the Russian Federation in the Ruling of December 21, 2000 on the complaint of citizen R.P. Panfilov for violation of his constitutional rights by Article 92 of the Code of Criminal Procedure of the Russian Federation, pointing out that an indispensable component of the right to judicial protection is to ensure that interested parties have the opportunity to present evidence to the court in support of their position, as well as to express an opinion regarding the position taken by the opposite party and the arguments it makes . A participant in the process who has not familiarized himself with the decision made against him and its justification is unable not only to properly argue his complaint against this decision, but also to correctly determine whether going to court will meet his interests. Therefore, to ensure the possibility of a judicial appeal against the investigator’s decisions, which violate personal rights, the accused must be given access to the relevant information, and the form and procedure for familiarizing with the materials are chosen by the investigator, prosecutor or court within the limits that exclude the danger of disclosure of investigative secrets.

Assessing the dynamics of the development of investigative secrecy, we can summarize that with the activities of the Constitutional Court of the Russian Federation and the adoption of the new Code of Criminal Procedure of the Russian Federation, the investigative curtain is increasingly opening, reducing the territory of investigative secrecy and creating the preconditions for an adversarial struggle. In this we should discover a natural process of gradual withering away of this atavism of the Soviet criminal process.

What responsibilities are provided?

All persons involved in the case are warned that it is impossible to disclose the secrets of the investigation, but some citizens do not fulfill this duty. For violation of the law, punishment is established under Art. 310 of the Criminal Code:

• a fine of up to 80 thousand rubles;
• compulsory, corrective labor;
• arrest up to three months.

After the investigation is completed, you can tell the details. The exception is cases when the subject of the investigation represents a state secret or a secret protected by law.

What are the consequences of violating a subscription?

You need to know that the secret of the preliminary investigation of the Criminal Procedure Code of the Russian Federation can be disclosed despite the subscription.

There are different options for transferring case material to third parties:

1. Transmitting information about a procedural case orally.
2. Transfer of written notes about the case by a participant in the process.
3. Transfer of copies or originals of documents from the case.

How will the violator have to answer before the law? A crime of this kind is provided for in Article 310 of the Criminal Code of the Russian Federation.

But before you sign the non-disclosure document, you should read it carefully. Quite often it happens that the subscription does not contain specific data, but only a general phrase about non-disclosure of preliminary investigation data; such wording is incorrect. Having turned to the Code of Criminal Procedure of the Russian Federation, namely Part 2 of Article 161, everyone will understand: the person involved in the case does not have to make public only those facts and speculations that became known to him during a conversation with an authorized person. The data that he had before committing the crime, but which were used in the case, is not a secret.

It turns out that when disseminating known data in the case of a general wording about the secrecy of the investigation in the subscription, the participant in the legal proceedings is not a violator of the law.

Also, Article 310 of the Criminal Code of the Russian Federation does not threaten those whom the investigator or interrogator asked to sign a document not at the first meeting, but later, but at the same time the person could already share the supposed secret information with someone.

It is not so scary to preface the material on the case if the document on the secrecy of the investigation of the Criminal Procedure Code of the Russian Federation has not been signed. If, nevertheless, a participant in the process was provided with such a subscription, then he is automatically the carrier of important information. And in order not to fall under an article of the Criminal Code, you should be prudent.

Season 21 episode release schedule

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:

1. On non-compliance with the law of the Russian Federation by officials and government authorities in general.
2. Voiced by authorized employees in the media, through television and in any other way through which information was transmitted to the masses.
3. 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.

Regulatory acts

There are a large number of legislative norms that regulate this issue. Judges in the decision-making process rely on the following data:

• Criminal Procedure Code of the Russian Federation;
• Criminal Procedure Code Art. 161 “On the inadmissibility of disclosure of data obtained as part of the preliminary investigation”;
• presidential decree of March 6, 1997 No. 188;
• Art. 310 of the Criminal Code of the Russian Federation.

This is interesting: Is giving a bribe to an official punishable?

As you can see, the disclosure of preliminary investigation data is regulated by a large number of rules and laws.