Disclosure of preliminary investigation data - Commentary...

Disclosure of preliminary investigation data

Disclosure of preliminary investigation data by a person warned in accordance with the procedure established by law on the inadmissibility of their disclosure, if it was committed without the consent of the investigator or person conducting the inquiry (in the edition of the Federal Law of July 24, 2007 No. 214-F3), -

is punishable by a fine of up to eighty thousand rubles or in the amount of the salary or other income of the convicted person for a period of up to six months, or by compulsory labor for up to four hundred and eighty hours, or by correctional labor for up to two years, or by arrest for a period of up to three months (as amended by Federal Law No. 162-FZ of 08.12.2003, No. 81-FZ of 06.05.2010, No. 420-FZ of 07.12.2011).

1. The object of the offense provided for in the article is social relations that ensure the secrecy of the preliminary investigation and inquiry in order to prevent interference with procedural activities, including when collecting and recording evidence and protecting the interests and safety of the participants in the preliminary investigation.

The subject of the disclosure of data can be any information obtained during the pre-trial proceedings: about the evidence collected, the sources of these evidence, the applied procedural coercion measures, the planned investigative actions and the operational- the parties involved in the conduct of the preliminary investigation, etc. Premature, before the completion of the preliminary investigation, familiarization of the participants in the process or persons having non-interest in the criminal case may lead to the destruction of evidence, the elimination of persons possessing valuable information for the investigation, unlawful influence on participants in the proceedings, connection of various levers of influence to the investigator, employees, prosecutors.

The prohibition on the disclosure of data established by the investigator or inquirer may concern either certain information or any information that has become or will become a person known in connection with his participation in the preliminary investigation or inquiry.

2. This crime can only be committed by means of action - the transfer of verbal information about the criminal case to other persons, copies of any procedural documents or other materials from the case, the distribution of their extracts from the case materials and other records.

Obligatory conditions for the onset of criminal liability under the article are: 1) attribution of information disclosed is not just information about the crime, but to the data of the preliminary investigation; 2) the presence of a warning by the investigator, inquiry officer or other authorized person about the inadmissibility of disclosure of the specified data; 3) the lack of agreement between the investigator or the investigator for the disclosure of data; 4) the data is communicated to a person who is not involved in the preliminary investigation or, although participating in it, but not admitted to specific information.

In this case, in accordance with Part 2 of Art. 161 CPC warning by the prosecutor, investigator, inquirer of the participant in criminal proceedings on the inadmissibility of disclosure without the appropriate permission of the information known to him, preliminary investigation under the threat of criminal liability under the article is made in writing and certified by the signature of the party to the proceedings. The consent of the investigator or investigator to the disclosure of data can be both written and oral.

3. A crime is recognized as "completed" in the case of the transfer of preliminary investigation data to at least one person who is not authorized to own them. The subsequent use or non-use of this data, as well as the communication about them to others on the qualification of the deed does not affect.

4. Based on the comparative analysis of the article under review and art. 161 CCP, which fixes the inadmissibility of disclosure of preliminary investigation data, the subject t of the crime in question can only be a participant in criminal proceedings. At the same time, as the US Constitutional Court pointed out in its Decision of 21.12.2004 No. 467-0 "On the complaint of Pyotr Yefimovich Pyatnichuk on violation of his constitutional rights, the provisions of articles 46, 86 and 161 of the Code of Criminal Procedure of the United States", the prohibition of disclosure of preliminary investigation data can not be extended to the suspect and the accused in the commission of the crime, and they are not subject to criminal liability for the disclosure of such data.

5. The crime in question can be committed both with direct, and with indirect intent , taking into account that a person may not always fully realize the inadmissibility of disclosure of the preliminary investigation data known to him and treat this indifferently.

By negligence, this crime, by virtue of Part 2 of Art. 24 CC, can not be committed.

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