Non-Disclosure of Pre-Trial Investigation Data: Legal Framework and Practical Implementation

The paper highlights that criminal procedure law permits the application of the institution of nondisclosure of preliminary investigation data at any pretrial stage of criminal proceedings. It concludes that the category of «preliminary investigation» should be interpreted broadly — as the activity of authorized actors aimed at exposing offenders and fulfilling the purposes of criminal proceedings — which makes it possible to hold persons liable for disclosing preliminary investigation data (Art. 310 of the Criminal Code of the Russian Federation) at the stage of initiating a criminal case. The study notes that the implementation of this institution is directed not only toward safeguarding the rights and freedoms of participants in criminal proceedings but also toward ensuring the interests of justice from the moment a crime report is received. It argues for the unity of the principles of criminal proceedings and the general conditions of preliminary investigation for all participants involved in the proceedings, emphasizing that the institution under study may be applied to suspects and accused persons without violating their right to defense. The author points out that the procedural status of a suspect or an accused person does not include an obligation to sign an undertaking not to disclose preliminary investigation data, but that this does not prohibit preliminary investigation authorities from obtaining such an undertaking. Recommendations are offered to persons conducting preliminary investigations regarding the selection of preventive measures involving restrictions on the liberty of suspects and accused persons when they refuse to provide the undertaking at issue. The paper substantiates that the content of an undertaking not to disclose preliminary investigation data depends on the circumstances of the particular criminal case, thereby underscoring the absence of any need to establish by statute an imperative list of information not subject to disclosure.

1. Akopdzhanova MO. Transparency as the most important principle for countering corruption crimes. Russian Justice. 2015;2:28-31. (In Russ.).

2. Bagmet AM, Osmanova NV. Keeping the personal data of participants in criminal proceedings secret. Russian Judge. 2019;7:27-33. (In Russ.).

3. Borisov AS. On the issue of individual problems of ensuring the secrecy of the preliminary investigation. Vestnik of the Russian University of Cooperation. 2018;1(31):103-107. (In Russ.).

4. Bunin OYu, Churkin AV. On injustice in the criminal legal protection of lawyers and their criminal liability. Law and State: The Theory and Practice. 2019;1(169):116-120. (In Russ.).

5. Churkin AV. The Issue on Explanations as New Evidence Revisited. Russian Investigator. 2015;3:21-25. (In Russ.).

6. Dostovalov S. In violation of the subscription. Novaya advokatskaya gazeta. 2016;21(230). (In Russ.).

7. Efremova MA. On the issue of criminal liability for disclosing the data of the preliminary investigation. The Bulletin of the Kazan Law Institute of the Ministry of Internal Affairs of Russia. 2015;4(22):34-38. (In Russ.).

8. Esina AS, Blinova EV. Non-disclosure of preliminary investigation data: problems of law enforcement and interpretation issues. Vestnik of Moscow University of the Ministry of Internal Affairs of Russia. 2020;3:113-117. (In Russ.).

9. Evseenko VE. Article 161 of the Code of Criminal Procedure of the Russian Federation as a means of ensuring the protection of information constituting a secret protected by law at the pre-trial stages of the criminal procedure. Theory and Practice of Social Development. 2015;3:80-82. (In Russ.).

10. Evseenko VE. Secrecy in the pre-trial stages of the criminal trial. Cand. Sci. (Law) Diss. Krasnodar; 2016. (In Russ.).

11. Garmaev YuP. The principle of offensiveness in the identification and investigation of crimes. Russian Investigator. 2016;2:6-12. (In Russ.).

12. Golovinskaya IV, Krestinsky MV, Savelyev II. Separate problems of the implementation of constitutional and criminal procedural guarantees of the rights of persons in the course of criminal proceedings. Modern Law. 2019;3:42-46. (In Russ.).

13. Kutazova IV. The mechanism of criminal procedure to ensure the inadmissibility of disclosing data from criminal proceedings. Cand. Sci. (Law) Diss. Tyumen; 2011. (In Russ.).

14. Lebedev VM (ed.). Commentary to the Criminal Code of the Russian Federation. In 4 vols. Vol. 4: Special part. Sections X–XII. Moscow: Yurayt Publ.; 2020. (In Russ.).

15. Maslov AE. Investigative Secrecy as a Tool for Overcoming Resistance to an Investigation. Cand. Sci. (Law) Diss. Voronezh; 2001. (In Russ.).

16. Maslov AE. Preliminary Investigation Secrecy under the Criminal Procedure Code of the Russian Federation. Judicial Authority and Criminal Process. 2019;2:24-34. (In Russ.).

17. Matvienko IV. Problems of ensuring the secrecy of the data of the preliminary investigation and information on security measures applied to participants in criminal proceedings. Gaps in Russian Legislation. 2016;1:130-133. (In Russ.).

18. Naumov AM. Procedural status of the participants in the pre-investigation. Russian Investigator. 2016;8:8-12. (In Russ.).

19. Novikova MA. Investigation of the disclosure of data from the preliminary investigation and information on security measures applied to participants in criminal proceedings. Cand. Sci. (Law) Diss. Moscow; 2009. (In Russ.).

20. Onopko OA. Problems of Secrecy Preservation in Preliminary Investigation Criminal Procedure. Humanities and Law Research. 2016;2:163-166. (In Russ.).

21. Rumyantseva MO. Initiation of a Criminal Case: Problems and Prospects. Moscow: Justitsinform Publ.; 2019. (In Russ.).

22. Shibanova EV. On Tactics of Prevention of Preliminary Investigation Secrecy Disclosure. Russian Investigator. 2017;11:3-7. (In Russ.).

23. Shurukhnov NG, Pushkin AV. Concretization of provisions on the inadmissibility of disclosing preliminary investigation data. Vestnik of Academy of Economic Security of the Ministry of Internal Affairs of Russia. 2019;1:75-78. (In Russ.).

24. Vlasova NA. Ensuring the secrecy of the preliminary investigation. Vestnik of Moscow University of the Ministry of Internal Affairs of Russia. 2016;3:147-150. (In Russ.).

25. Zharikov YuS. Inadmissibility of disclosing the data of the preliminary investigation: to the question of the constitutionality of the criminal procedure. Modern Law. 2019;9:118-123. (In Russ.).