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.
Commentary to Art. 310 Criminal Code
1. The subject of the crime is the data of the preliminary investigation, i.e. information obtained during pre-trial proceedings: about the results of investigative actions (interrogations, searches, etc.), about procedural coercive measures, about persons participating in the preliminary investigation, etc.
2. The objective side is expressed in the form of actions to disclose the specified information without the consent of the investigator or the person conducting the inquiry, in violation of the warning about their non-disclosure. Disclosure means unlawful communication, the transfer of relevant information to a person(s) who did not know it, in any form (oral, written, using electronic means, etc.). According to Part 3 of Art. 161 of the Code of Criminal Procedure, data from a preliminary investigation can 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. The prohibition of non-disclosure of preliminary investigation data cannot be extended to a suspect or accused of committing a crime. Disclosure of data on the private life of participants in criminal proceedings without their consent is not permitted. Such actions are qualified according to the totality of crimes provided for in Art. 310 and 137 of the Criminal Code.
3. The crime is considered completed from the moment the preliminary investigation data is disclosed.
4. Special subject: a person warned in accordance with Art. 161 of the Code of Criminal Procedure of the Russian Federation on the inadmissibility of disclosing without appropriate permission the data of the preliminary investigation that has become known to him.
A person suspected or accused of committing a crime for which the preliminary investigation data has been disclosed by them is not considered a subject of a crime under this article.
Disclosure of preliminary investigation data by the investigator, the person conducting the inquiry, the prosecutor, the judge and other persons to whom they became known in connection with their official activities is qualified under Art. 286 of the Criminal Code.
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.
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.
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:
- Transmitting information about a procedural case orally.
- Transfer of written notes about the case by a participant in the process.
- 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.
Legal justification for the crime
In order for the decision made by the court to be fair and justified, it is necessary to carefully understand all the circumstances of Article 310 of the Criminal Code of the Russian Federation. The comments will help you do this using basic rules and definitions.
To begin with, it is necessary to clearly imagine the corpus delicti, the object of which is the interests of justice itself. The subject in this case is an individual who has reached the age of sixteen and was promptly warned about the need to keep information on this case secret. A citizen must be fully sane in order to be held accountable for his actions to the fullest extent of the law. The objective side of the violation is the fact of disclosure by a specific person of information without the knowledge (or permission) of the relevant government officials (investigator, prosecutor, interrogator and others). Such an act contradicts the promise made by the citizen in the previously drawn up “non-disclosure agreement”. The subjective side of the violation is that the actions of the guilty person have direct intent, that is, aimed at obstructing justice.
Investigation rules
During the investigation of a crime, representatives of the law, as a rule, require participants in the process to keep secret everything that they may become aware of during this time. For such purposes, investigators, interrogators or operatives have the right to take a subscription from these citizens, in which each of them undertakes not to disclose any information that relates to the circumstances of the unlawful act committed. Such a document is drawn up in writing and attached to the case materials. If one of the defendants decides to break his promise, the court will be able to hold him criminally liable for such actions in accordance with Article 310 of the Criminal Code of the Russian Federation. This decision is completely justified. After all, if this or that information becomes known prematurely to persons having a procedural interest, this will allow them in advance:
- destroy existing evidence;
- neutralize witnesses;
- eliminate persons who possess information useful for finding out the truth;
- involve for your protection other persons who may influence the representatives of the law conducting the investigation.
All this can lead to the fact that the investigation reaches a dead end and the offender will be able to avoid fair punishment.
Triumph of justice
It will be possible to solve a crime only if citizens who, by necessity, are privy to certain circumstances of the case, do not interfere with this. All data from the preliminary investigation must be kept in the strictest confidence. In practice, this means information:
- the progress of the ongoing investigation;
- about all the evidence in the case and the sources from which it was received;
- about the testimony of specific persons obtained during interrogation;
- about planned investigative or operational search activities.
A citizen who makes such information public without appropriate permission will have to answer before the law for his rash or intentional actions.
Article 310 of the Criminal Code of the Russian Federation provides for punishment in the form of:
- A fine, the amount of which can reach 80 thousand rubles or the citizen’s total income for a period of up to six months.
- Compulsory work for a period of no more than 480 hours.
- Correctional labor, the duration of which, depending on the court decision, can be up to 2 years.
- Arrest, that is, restriction of freedom, which can last no more than 3 months.
The specific punishment is assigned by the court depending on the severity of the consequences of the offense committed.
Who is obliged to remain silent
Attention! Since the article for the dissemination of data from the preliminary investigation concerns its participants, everyone must remain silent, from the parties to the proceedings to uninterested outside witnesses.
The majority of persons participating in the process believe that immediately after leaving the investigator’s office it is necessary to keep your mouth shut, otherwise you may fall under Article 310 of the Criminal Code of the Russian Federation or other legislative acts.
In fact, in the legislation ( Article 161 of the Code of Criminal Procedure of the Russian Federation ) there is a clause that includes a list of information that is strictly confidential, as well as a list of punishable acts:
- Failure to comply with the law on the part of officials and the state.
- Vocalization of prohibited materials through the media.
- Ignoring the law regarding reservations in open meetings.
If the presentation of certain data was necessary during the submission of documentation to government agencies, the disclosure of information does not constitute a criminal activity.
The fact of transferring information and materials to a specialist brought in to investigate the issue also falls into the same category. But there is one condition, which is that he signs secret information.
