Redemption without disclosure – Newspaper Kommersant No. 3 (7448) dated 01/11/2023

The Ministry of Internal Affairs should not specify in its certificates of a criminal record whether it has been cancelled, follows from the refusal decision of the Constitutional Court. The repeal of the relevant provisions of the two federal laws was sought by a resident of Omsk: he believes that the absence of such information in official documents violates his right to a good name and protection of private life. But the Constitutional Court did not agree with this approach. The Ministry of Internal Affairs explains that the repayment of a criminal record occurs automatically after a certain period, and citizens and other interested persons are quite capable of calculating this period on their own.

The Constitutional Court (CC) allowed the Ministry of Internal Affairs not to specify in the certificate of criminal record whether this conviction was extinguished. This is stated in the refusal of the ruling of the Constitutional Court to the complaint of Andrey Batur, a resident of the Omsk region, who challenged the constitutionality of a number of provisions of the laws “On the Police” and “On Personal Data”, which regulate the formation and maintenance of data banks about citizens, as well as the processing of data on criminal records. The document is published on the CC website. The applicant did not agree that these norms do not provide for a mechanism for clarifying data on the person who committed the crime, and, in particular, do not allow the authorized bodies to indicate the date of its repayment in a certificate of the presence (absence) of a criminal record. This, according to Mr. Batur, violates his constitutional right to protect his honor and good name.

Andrei Batura, who received a relevant certificate from the territorial division of the Ministry of Internal Affairs, tried to force the police through the court to enter into the database the data that his criminal record had been cancelled, but was refused. The Central District Court of Omsk did not find grounds for imposing additional duties on the police, since the centralized records already contain comprehensive information and meet the established requirements. “In order to search for information on the presence (absence) of unexpunged or outstanding convictions according to the records of the Ministry of Internal Affairs of Russia, a full set of initial data is needed, which makes it possible, among other things, to reliably establish both the fact of the presence (absence) of unexpunged or outstanding convictions, and the fact that this information refers specifically to to a specific person,” the district court said in its decision.

The Constitutional Court supported the position of the Omsk colleagues. The contested norms, which establish the right of the police to process data on persons who are or have been subjected to criminal prosecution, and to store this data in order to perform the functions assigned to it, cannot be regarded as violating the constitutional rights of the applicant, the ruling of the Constitutional Court says. In any case, the court adds, the citizen who received the certificate “is not deprived of the opportunity, presenting it at the place of demand, to also submit documents allowing … to conclude that the conviction has been extinguished.”

The representative of the Ministry of Internal Affairs of the Russian Federation in the Supreme and Constitutional Courts, Gaik Maryan, notes that this is not the first attempt to revise the content of certificates of no criminal record: questions of this kind have been repeatedly raised before both the Constitutional and the Supreme Courts. This time, the citizen does not agree that the certificate does not indicate whether the conviction has been cancelled. But the conviction is automatically considered canceled after a certain period (it depends on the punishment), and the citizen himself can calculate it, Mr. Maryan points out. If a conviction is expunged by a court decision, then such information is entered into the database and, accordingly, indicated in the certificate. However, the issuance of a certificate of expiration of a criminal record is not provided for either by law or by regulations, the representative of the Ministry of Internal Affairs explains: “We provide only the information that we have.”

Apparently, the problem with the calculation of deadlines is caused by difficulties in interacting with the police when exchanging information, says Varvara Knutova, partner at Sotheby’s law firm. She recalls that a criminal record certificate can be ordered through the State Services or the MFC, but in practice the period for obtaining such a document is up to two months. The need for such a certificate may arise in different situations, the lawyer explains, for example, when applying for a job in law enforcement agencies and the civil service, as a chief accountant or working with minors, as well as when applying for an adoption. This certificate is also often requested abroad for applying for a job or obtaining a residence permit.

Judging by the activity of Russians in the courts, the issue of the content of certificates issued by the Ministry of Internal Affairs is relevant for many. In June last year, the Supreme Court considered a claim to invalidate the provisions of the administrative regulations of the Ministry of Internal Affairs, which determine the procedure for issuing certificates of a criminal record. At that time, Ivan Kolpakov, a resident of Novosibirsk, insisted that data on an expunged or canceled conviction should not be reflected in such certificates, as this interferes with his right to be elected to government and local self-government bodies, the choice of a field of activity and place of work, distorts information about his personality because it raises doubts about his moral, ethical and moral qualities and violates the right to privacy. However, the Supreme Court left the regulation in force, explaining that the presence in the certificate of information about the previous conviction or criminal prosecution in itself does not entail adverse consequences for citizens.

References to the fact that such information may give grounds for discrimination of the applicant, for example, in employment, do not stand up to criticism, Hayk Maryan is sure. And just with attempts of such discrimination, if they arise, and it is necessary to understand, he sums up.

Anastasia Kornya, Elena Rozhkova