A businessman from Siberia is trying to challenge the practice when even a canceled or expunged criminal record stays with a Russian forever. The first attempt failed – the Supreme Court did not see in such informing the Ministry of Internal Affairs a violation of the law and infringement of rights. Now it is the turn of the appeal and the Constitutional Court.
The initiator of administrative proceedings in the Supreme Court was a Novosibirsk businessman. In his 37 years, Ivan Kolpakov heard a guilty verdict twice: the first (for fraud, in 2007) was canceled at a cassation, the second (for extortion, in 2009) gave him three years of probation. A year later, the conviction was removed by a court order. In the same 2010, he became a municipal deputy, then worked in the district administration, then in the construction business as deputy general director.
These milestones are indicated in the 2019 election interview, about convictions there no mention. But they are in the certificate from the Ministry of Internal Affairs and, apparently, she prevented Ivan Kolpakov from becoming a deputy of the Legislative Assembly of Novosibirsk. At least, he himself is convinced of this, and this conviction became the reason for going to court.
Kolpakov challenged the Administrative Regulations of the Ministry of Internal Affairs for the provision of public services for issuing a certificate of the presence or absence of a criminal record. The document suggests that a criminal record is not indicated only under certain conditions. For example, in the absence of an event / corpus delicti, innocence (a complete list can be see here).
Now the regulations of 2019 are in force, a similar principle was observed in the regulations of 2011, and in the instructions of 2001, but then there were two certificates – that is, canceled or withdrawn convictions were entered in a separate document.
According to Kolpakov, the presence of such information in the certificate violates his right to be elected to government bodies and makes it impossible to choose a place of work and field of activity. In addition, he believes that the right to privacy was violated.
Kolpakov’s representative in court, Elena Danilova, argues that one can also talk about reputational risks and the inability to “rehabilitate”. “In fact, a person, if there is any mistake in life that entails criminal liability, will subsequently be deprived of the opportunity to get rid of this stigma,” explains Danilova.
In his administrative lawsuit, Kolpakov pointed out that the publication by the Ministry of Internal Affairs of the fact of the expunged conviction contradicts the meaning of Part 6 of Art. 86 of the Criminal Code of the Russian Federation, according to which “the repayment or removal of a criminal record shall annul all legal consequences provided for by this Code related to a criminal record”.
However, we are talking about the consequences of a slightly different kind – for example, a person with an extinguished or withdrawn conviction will not be toughened when a new sentence is passed, because he is considered to be convicted for the first time, and this is already an extenuating circumstance.
As such, a conviction imposes a number of restrictions on a person, which may not have a statute of limitations. For example, with an extinguished conviction, one can already serve in the draft army or be elected to deputies, but the path to the special services or law enforcement agencies is ordered. With an extinguished (and removed) conviction for grave and especially grave crimes, one cannot buy weapons, engage in pedagogical or advocacy activities, work in aviation, and certain types of entrepreneurship are also prohibited.
This rule is established by various federal laws, therefore, when applying for a job in these areas, they will definitely ask for a certificate of criminal record, and the presence of even a canceled / withdrawn one in this case matters. If such a certificate was required of you in an organization where there are no such restrictions for personnel, and even on its basis they were refused employment, then this issue is resolved with the help of the labor inspectorate and the court.
Actually, the Supreme Court pointed this out to Kolpakov, denying the claim. As for the fact that a criminal record surfaced in the businessman’s certificate, the guilty verdict on which was canceled, this is a mistake of the operator, that is, the Ministry of Internal Affairs, and you need to sue the unit that issued the certificate, and not with the Administrative Regulations.
By the way, such a certificate is issued personally to the applicant or his legal representative, that is, obtaining such information by outsiders (the police will receive it in another way) is illegal.
Both Ivan Kolpakov and his lawyers disagree with the court decision. First, there will be an appeal, and then an appeal to the Constitutional Court.
Lawyer Vadim Klyuvgant: “Statistical data on a criminal record are stored in the Ministry of Internal Affairs, they report this fact. Was there a conviction? Was. In this case, a person is considered not to have a criminal record if it is removed or extinguished. He should be considered as not convicted, but this does not cancel the fact of a criminal record. Here is the framework within which the assessment of this issue takes place. Further, there is already a field for a certain discretion, for example, if we are talking about pedagogical activity and so on. Yes, maybe the employer will refrain from hiring such a candidate.”
Lawyer Kaloy Akhilgov: “There is part 6 of article 86 of the Criminal Code of the Russian Federation, which clearly states that if a conviction is expunged or extinguished, it does not have any legal consequences for a person. The Supreme Court says at the same time: “Yes, but …” And explains that this is normal.
Lawyer of Natela Ponomarev: “From the point of view of the law, a person whose criminal record has been extinguished or removed is considered to be unconvictionable for all of us, for society. Of course, the information that he was prosecuted still remains inside the information systems. When security applicants are checked, they see this data. Probably, in certain cases, society needs to know that someone had a criminal record, and this is socially significant information. I don’t have a definitive answer.”
The current version of the sixth part of Article 86 of the Criminal Code of the Russian Federation entered into force in 2015. It was then that the phrase concretizing the legal consequences appeared in it – “provided for by this Code”. In the explanatory note, the authors of the amendments appealed specifically to labor legislation.
“The mere fact of having an expunged or canceled conviction, in fact, cannot indicate that it did not exist at all. At the same time, the facts of committing certain crimes, serving a sentence, and equally having a criminal record in the past may be incompatible with the characteristics of certain types of labor activity, ”the package of documents submitted to the State Duma said.
At the same time, the problem of sidelong glances during the employment of a convicted person is really not new. Starting a lawsuit with a future boss is an unattractive prospect. In 2016, another law was adopted, which introduced the institute court fine. It applies to crimes of small and medium gravity. That is, a person is found guilty, but is released from criminal liability and, as a result, he has no criminal record. Another thing is that the fact of bringing to criminal liability remains, and it is indicated in the same certificate, since a court fine is not a rehabilitating ground.
Alina Ampelonskaya, Yulia Nikitina, Fontanka.ru