When an employee violates the provisions labor law the employer imposes sanctions on him. One of them is suspension from work. Art. 76 of the Labor Code of the Russian Federation establishes the grounds for applying this measure.
The list provided in the article is not exhaustive. In federal law, other legal documents other cases may be established when the employer is obliged to remove the employee from the performance of his duties. Consider the features of the implementation of the provisions of Art. 76 of the Labor Code of the Russian Federation with expert comments.
General information
Suspension from work, the grounds for which are established by Part 1 of Art. 76 of the Labor Code of the Russian Federation, - temporary exclusion of an employee from the performance of his labor duties. This measure is applied at the initiative of the employer or at the order (requirement) of employees and bodies authorized to do so by federal law and other industry standards.
Foundations
How installs Art. 76 Labor Code RF, the employer must suspend the employee:
- Appeared in a state of intoxication at the enterprise.
- Those who have not undergone training and subsequent testing of skills, knowledge in the field of labor protection (labor protection) in accordance with the established rules.
- Has not passed the required medical examination.
- Having contraindications to work.
- If the special right of a person is suspended for a period of up to two months.
- At the request of authorized bodies and employees.
- In other cases prescribed by law.
Rules
Part 2 of Article 76 of the Labor Code of the Russian Federation stipulates that the employer must remove the employee until the factors that served as the basis for taking this measure are eliminated, unless otherwise established by the Code or other law.
For the period of non-admission of an employee to labor activity, he is not charged. Exceptions may be provided for in federal law or the Labor Code.
If the reason for the suspension was the failure to pass training, test skills, knowledge, medical examination through no fault of the employee, all the time of absence from work is paid to him as simple.
Art. 76 of the Labor Code of the Russian Federation with comments 2015
The norm under consideration establishes the measure of responsibility of the employee. At the same time, in part 1 of Art. 76 of the Labor Code of the Russian Federation says that its application is the responsibility of the employer.
Suspension is carried out until the reasons for which it was imputed to the employee are eliminated. For example, if a citizen appeared drunk at an enterprise, then he is not allowed to work only on the day in which he was in this state.
Accordingly, it will be unlawful to remove this employee in the following days, including, for example, until a decision is made to impose a disciplinary sanction on him.
The obligation under Art. 76 of the Labor Code of the Russian Federation, is not made dependent on the respectfulness or disrespectfulness of the reasons why a citizen did not undergo training, a medical examination or a knowledge test. AT specified cases citizen is suspended under any circumstances.
Drunk
Art. 76 of the Labor Code of the Russian Federation is applied by the employer if the citizen appeared at the enterprise in a state of intoxication. Intoxication can be alcoholic, narcotic or caused by other toxic substances.
This condition can be confirmed by a medical report or other evidence, for example, the testimony of witnesses. Witness testimony is drawn up by an act, which is drawn up with the participation of a representative from the trade union, if the suspended employee is a member of it.
Mandatory training and testing of knowledge on OT
The obligation of an employee to be instructed, trained in safe techniques and methods of work, internships and testing skills, knowledge is fixed by Article 214 of the Labor Code. The procedure for organizing these events was approved by the Decree of the Ministry of Education and the Ministry of Labor of 2003 No. 1/29.
If a citizen suspended from the execution of his professional duties, has undergone training and subsequent testing of knowledge/skills, he is immediately allowed to work.
Mandatory medical examination
For some workers, periodic medical examinations and psychiatric evaluations are mandatory. For example, a medical examination is provided for employees of hazardous, hazardous industries, for teaching staff.
Based on the results of the examination, a conclusion is issued. If it contains contraindications to work, the employee is suspended from work.
The rules for organizing and conducting medical examinations are approved by Orders of the Ministry of Health and Social Development.
Suspension of special right
In Art. 76 of the Labor Code of the Russian Federation, there is a clause stating that suspension for the specified reason is carried out if the restriction for the employee is set for a period of up to 2 months.
A special right can be the right to drive a vehicle, a license to carry a weapon, and so on.
At the same time, in Art. 76 of the Labor Code of the Russian Federation states that the suspension is applied if the restriction imposed on the employee makes it impossible for him to fulfill his duties, and it is also not possible to transfer him to another position with his written consent.
The employer in such cases must offer the employee all the vacancies that are suitable for the employee. It could be vacancy, professional activity corresponding to the qualifications of a person, inferior or lower paid position. One of the main conditions for the transfer is the absence of contraindications for the performance of the work. The employer must offer all the vacancies that he has in the area. He is obliged to offer work in other districts / regions, if this is provided for in other agreements with the employee.
If the period of suspension of the right exceeds 2 months, specified in Art. 76 of the Labor Code of the Russian Federation, or a citizen is generally deprived / does not have the appropriate one, must terminate the contract with him, in accordance with the provisions of paragraph 9 of paragraph 1 of part 83 of Article of the Code.
Requirements of authorized bodies and employees for removal
The competent structures include, first of all, the federal labor inspectorate.
The requirement not to be allowed to work may be made against a citizen accused/suspected of a crime. On the basis of Article 114 of the Code of Criminal Procedure, if it is necessary to temporarily suspend a person from the performance of his labor duties, the employee conducting the proceedings, with the consent of the head of the investigative unit (for the investigator) or the prosecutor (for the interrogating officer), files a petition for this before the court.
Within two days, the judge shall issue a ruling granting or not satisfying the request. This document is sent to the place of implementation professional activity the accused/suspect.
As established in Federal Law No. 52, state sanitary doctors and their deputies are empowered to temporarily remove citizens who are carriers of infections and sources of the spread of pathologies due to the specifics of the work they perform.
Paragraph 4 of paragraph 69 of Article 208 of Federal Law establishes that if the formation of executive structures is carried out by a general meeting of shareholders, the charter of an economic entity may enshrine the right of the supervisory board (board of directors) to suspend the powers of the sole executive body(general director, director). The corresponding decision is the basis for the application of Art. 76 of the Labor Code of the Russian Federation.
Nuance
Suspension from the activity of the head of a joint-stock company in accordance with the decision of the board of directors must be distinguished from the removal of the director of a debtor enterprise from a substituted position on the basis of the provisions of Federal Law No. 127 (the Law "On Bankruptcy"). In the latter case, the measure taken acts as an independent additional ground for terminating the contract with the head of the company.
In accordance with paragraph 1 of paragraph 69 of Article FZ No. 127, the court removes the director of the debtor enterprise on the basis of a petition from the interim manager.
Additionally
As established in Article 76, a citizen does not receive a salary during the period of suspension. Meanwhile, there are exceptions in a number of normative acts of the federal level.
For example, Article 59 of the Federal Law No. 79 provides that civil servants suspended from their duties in connection with an internal audit, earnings are retained for the entire period of suspension.
At its core, suspension from work is the obligation of the employer in relation to the employee who, for certain reasons, cannot continue to fulfill his official duties. The grounds for using such a measure are regulated by Article 76 of the Labor Code of the Russian Federation and provide for the employee not being allowed to work or stopping it if the worker has already started it.
In the event that grounds for suspension from execution are identified official duties manager must take appropriate action immediately. It does not matter the need for production or other mitigating factors.
The concept of "non-admission", although similar to "dismissal", but they have some differences. In particular, the first is used when the grounds are identified before the start of the work of the employee. The second is used when they were discovered after he took up his official duties.
From a legal point of view, suspension from work does not entail changes employment contract or its termination. However, in some cases, this may be a prerequisite for the dismissal of an employee. For example, when a worker appears at the workplace in a state of alcoholic or other type of intoxication, he is initially not allowed to work or is removed from it. And after that, the employer has the right to use this circumstance as a basis for terminating the employment relationship.
Exclusion from work, in itself, is a temporary measure, valid until the grounds that led to its use are eliminated. During the period of suspension of the worker from work, wages are often not accrued to him. Except for situations where the opposite is stipulated by the norms of the Labor Code of the Russian Federation or other legislative acts.
Grounds for preventing or removing a worker from work
The grounds for the application of these measures are enshrined in Article 76 of the Labor Code of the Russian Federation and include:
- Appearing on the territory of the enterprise in a state of alcoholic or other type of intoxication;
- Failure to receive a certificate of passage mandatory medical examination if its presence is obligatory for the employee to perform his official duties;
- Failure to pass mandatory training or testing of the level of knowledge in the field of labor protection;
- Suspension of the license or right to carry out the type of activity necessary for the work of the worker for up to 2 months;
- Deterioration of the state of health, confirmed by the decision of a special medical commission, which prevents the employee from continuing to work in his position;
- Requirements of authorized officials and employees of state bodies, as well as other grounds provided for by the Federal Law or other regulatory acts.
According to part 2 of article 76 of the Labor Code of the Russian Federation in general order the suspension is valid until the circumstances that led to the imposition of the restriction are eliminated. However, in a number of cases provided for by applicable law, admission to work may depend on other factors.
The procedure for issuing a suspension from work
Regardless of who initiated the suspension from work, the procedure for issuing this measure will depend on the internal procedures of the company itself and its scope of activity. In a number of industries, this process is significantly different, including it can be significantly simplified: for example, in enterprises operating in the field of catering (including public).
However, despite the fact that in various areas the procedure for processing suspension from work may vary, there are basic rules that apply in all cases. So any circumstances that have become grounds for preventing employees from working should be recorded in writing or be documented. Often, this document takes the form of a memorandum addressed to the head or a special act drawn up in in due course.
The suspension itself is issued in the form of an order or order for the enterprise. These documents do not have a unified form, but must be drawn up in accordance with the rules for the design of official papers. In addition, they should contain information on:
- The person who will be suspended from work (his full name, as well as an indication of the position held);
- Circumstances that caused the non-admission to the performance of official duties;
- The duration of the restriction, if an exact date can be set;
- Actions that the employee needs to take to remove the restriction, if necessary, to resume work;
- If necessary, the data of the person temporarily acting as the suspended employee are indicated.
If it is necessary to remove an employee from work in as soon as possible, in some cases a simplified scheme can be used. For example, when a worker appears at the workplace in a state of intoxication, the health worker initiates this procedure by conducting an examination and sending an appropriate conclusion to the head of the enterprise. With the direct participation of the employer this procedure is also significantly accelerated.
However, even the use of a simplified scheme involves the execution of the necessary papers. If a suspension from work has been applied to a worker, the order must be drawn up immediately. This measure is necessary both to confirm the date and time of suspension of official duties of an employee, and for correct financial accounting. Based this document the accrual of wages to the suspended employee will be terminated, unless otherwise provided by applicable law.
After signing and issuing an order or order, the employee must be familiarized with it in the prescribed manner against signature. If he refuses to familiarize himself with this document, his text is read out to him, after which an appropriate act is drawn up signed by at least 2 witnesses.
Legal Consequences of Suspension from Performance of Official Duties
Regarding legal consequences dismissal of an employee from work, they have several outcomes:
- Resumption of labor activity after the elimination of grounds for restriction;
- Transfer of an employee to another position (often used when receiving a medical opinion on the deterioration of the citizen's health and the impossibility of continuing to work in the current position);
- Termination of the employment contract.
Each of them must be documented and accompanied by an appropriate order or instruction for the enterprise, signed by its head.
With regards to payment for the time of suspension, then in general, according to part 3 of article 76 of the Labor Code of the Russian Federation, during this period the salary of the worker is not charged. However, this rule does not apply if the reason for not being allowed to work was not passing a medical examination, necessary training or testing knowledge in the field of labor protection, which was allowed through no fault of the employee. In this case, this time, up to the resumption of work, must be paid as downtime in the manner prescribed by Article 157 of the Labor Code of the Russian Federation.
This also applies to cases where the suspension from the performance of official duties was declared illegal or carried out with violations of the registration procedure. In this case, according to Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the worker for all wages not received by him.
If the suspension occurred through no fault of the worker or with violations of applicable law, then this period of time should be included in the length of service giving the right to accrue annual rest days. In all other cases, this time is regarded as an absence without good reason, as a result of which it is not included in the length of service that gives the right to leave.
Features of the removal of civil servants from their positions
The norms of labor legislation equally apply to both employees working in private enterprises and civil servants. However, industry regulations also apply to the latter.
According to Article 32 of the Federal Law No. 79-FZ of July 27, 2004. "On the State Civil Service" a civil servant must be removed from his post in the event of:
- His appearance at the workplace in a state of intoxication;
- Failure to pass mandatory training or knowledge testing in the field of labor protection;
- The court's decision on temporary suspension from the performance of official duties in relation to him, in accordance with the norms of the current criminal procedure legislation of the Russian Federation.
The provisions are similar to the text of Article 76 of the Labor Code of the Russian Federation, however, there are a number of nuances. In accordance with part 3 of article 32 of the Federal Law No. 79-FZ, a civil servant is not allowed to perform his duties, depending on the guilt of the worker.
When a civil servant is removed from his position in accordance with part 4 of article 32 of the Federal Law No. 79-FZ, he is not paid a salary. Since the presence of guilt is a fundamental factor in preventing the performance of official duties, the grounds for payment wages in this case no.
After the elimination of the circumstances that led to the removal from office, the employee must be immediately allowed to work, unless otherwise provided by applicable law.
Civil servants also have an additional ground for suspension, which does not apply to other workers. They may be temporarily not allowed to work in connection with an internal check in relation to them. In this case, the suspension is made by the representative of the employer who initiated the inspection. The period of restriction of the employee's labor activity will also depend on its duration. It should be noted that at the time of the audit, the suspended employee, in accordance with Article 59 of the Federal Law No. 79-FZ, retains a monetary allowance.
In addition, the representative of the employer has the right, in the event of a conflict of interest, to also remove the civil servant from his official duties until the decision contentious issues. In this case, he will continue to pay salaries all the time necessary to resolve the conflict. This right is enshrined in part 2 of article 32 of the Federal Law No. 79-FZ.
In addition to the Federal Laws, civil servants are also subject to regulations adopted in the subjects of the Russian Federation. Their provisions may impose additional restrictions. For example, a ban on the appointment of a civil servant to another position during his removal from office.
Officials may not be allowed to work if they do not have a certificate of medical examination or psychological examination, if they are necessary for the performance of their duties. They must also be removed upon receipt by the representative of the employer of honey. conclusion, providing for contraindications for the performance of the duties of a civil servant, fixed by an employment contract.
Regarding the removal of municipal employees, the corresponding procedure is enshrined in Federal Law No. 25-FZ of 03/02/2007. "O municipal service in RF". According to Article 27 of this regulatory act in relation to official a measure such as suspension from duty may be applied if he has committed a disciplinary offense. At the same time, the exclusion from work will be valid until a decision is made on the disciplinary measure to be imposed, but not more than a month. The payment of wages for municipal employees is preserved. In this case, the suspension is formalized by drawing up a municipal legal act.
State and municipal employees are equally subject to both the norms of federal laws regulating activities in this industry and general provisions labor legislation.
Temporary removal from office is a measure of procedural coercion aimed at temporarily preventing a person from performing his official duties within the period of a preliminary investigation, conducted in the form of a preliminary investigation or in the form of an inquiry.
This measure of procedural coercion restricts the right enshrined in the Constitution Russian Federation freely choose the type of activity and profession, in connection with which the law establishes a judicial procedure for its application.
If the investigator finds it necessary to temporarily remove the suspect or the accused from office, he, with the consent of the head of the investigative body, as well as the interrogating officer, with the consent of the prosecutor, file a corresponding petition with the court at the place of the preliminary investigation, which the court considers within forty-eight hours from the moment of receipt, issuing a decision to temporarily remove the suspect or accused from office or to refuse to do so.
The petition of the investigator or interrogator must be motivated. Therefore, it must indicate where, when and by whom it was drawn up, the essence of the suspicion or the charge brought, the specific grounds that necessitated the temporary removal from office. Copies of the following are attached to the petition: 1) the decision to initiate a criminal case; 2) procedural documents confirming the status of the suspect (accused). For example, a protocol of detention of a suspect, a decision to bring him as an accused; 3) procedural documents confirming the person's involvement in the crime. For example, protocols for presenting a person for identification, searches and seizures, confirming the validity of the suspicion or charge against a specific official; 4) procedural documents justifying the need for temporary removal of the suspect (accused) from office. For example, protocols of interrogations of victims or witnesses, confirming threats against them from the suspect (accused); 5) characterizing material on the suspect (accused). Copies of these documents must be duly certified by the investigator or interrogating officer presenting them to the court.
Re-applying to the court with a similar petition in respect of the same person in the same criminal case after the court has issued a decision to refuse to remove the suspect (accused) from his post is not provided for by law, but, according to the author, it is possible if new circumstances arise, justifying the need to remove a person from his position.
The purpose of removing a suspect (accused) from his position is to ensure that the above person:
- did not interfere with the procedure for conducting a preliminary investigation and, by virtue of his position, did not influence the victims and witnesses;
- did not seize or destroy objects and documents bearing traces of the crime under investigation.
- the suspect (accused), while remaining in his position, will threaten the participants in criminal proceedings or otherwise influence them in order to achieve certain actions or decisions on their part, will be able to destroy evidence or otherwise obstruct the proceedings in a criminal case.
Suspension from office, if there are grounds, can be applied to a fairly wide range of persons, including those performing managerial functions in commercial or other organizations. For example, to leaders joint-stock companies, banks, public organizations, parties, charitable and other foundations.
In the course of consideration of this petition, the suspect (accused), his defense counsel, and the prosecutor participate in the court session. An investigator or interrogating officer who has filed a motion before the court for temporary removal from office of the suspect (accused) may also participate. Absence without good reasons the parties notified in due time of the time and place of the court session shall not be an obstacle to the consideration of the petition. Participation in the court session of the suspect (accused) in this case is his right, not his duty.
The petition is considered by the district court at the place of the preliminary investigation in an open court session, with a protocol being kept. After hearing the opinion of the participants in the process, the court retires to the deliberation room, where it issues a reasoned decision on the temporary removal of the suspect (accused) from his position or on refusal to do so. This decision is subject to announcement at the court session and can be appealed in the cassation procedure. At the same time, the appeal does not suspend this measure of procedural coercion.
Law enforcement practice shows that a decision on the temporary removal of a suspect (accused) from office is sent not only to the place of work, but also to a higher organization. Such a decision is subject to immediate execution. Control over its execution is carried out not only by the investigator or interrogating officer in charge of the criminal case, but also by the judge who issued the above decision. The conclusion of a citizen in custody actually temporarily removes him from his position.
According to part 4 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, the temporary removal of a suspect or accused from office is canceled on the basis of a decision of the inquirer, investigator, when the application of this measure is no longer necessary.
For example, an official terminated his labor activity due to retirement or dismissal.
Thus, this measure of procedural coercion can be canceled only on the basis of a decision of the inquirer or investigator. The consent of the court, the prosecutor or the head of the investigative body to make such a decision is not required.
Temporary removal from office is a continuing measure of procedural coercion, is not established for a specific period and does not require its extension, such as, for example, the period of detention during the investigation of crimes, which, according to parts 1 and 2 of Art. 109 of the Code of Criminal Procedure of the Russian Federation cannot exceed 2 months, and if it is impossible to complete the preliminary investigation within up to 2 months and in the absence of grounds for changing or canceling the preventive measure, it can be extended by a judge of a district court or a military court of the appropriate level in the manner prescribed by part three of Art. 108 of the Code of Criminal Procedure for up to 6 months, etc.
The temporary nature of the removal from office means that the decision to remove from office is not final, it is valid during the preliminary investigation, until this measure is no longer necessary.
However law enforcement practice shows that the measure of procedural coercion in the form of temporary removal from office, as a rule, remains not only for the period of the preliminary investigation, but also for the period of consideration of the case in the court of first instance.
A special procedure for considering a petition for temporary removal from office is provided for the highest official of a constituent entity of the Russian Federation. In accordance with Part 5 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, in the event that a high official of a constituent entity of the Russian Federation (the head of the highest executive body of state power of a constituent entity of the Russian Federation) is involved as an accused and is charged with committing a grave or especially grave crime, the Prosecutor General of the Russian Federation sends the President of the Russian Federation a proposal on temporary suspension from position of said person. The President of the Russian Federation, within 48 hours from the moment of receipt of the submission, decides on the temporary removal of the said person from office or on refusal to do so. Moreover, in this case, the highest official of the subject of the Russian Federation must have the status of an accused of committing a grave or especially grave crime.
A monthly government allowance of five minimum dimensions remuneration of labor temporarily suspended from his position may be paid to the suspect (accused) both by decision of the investigator or interrogating officer in charge of the criminal case, and by decision of the court that has considered the petition for the temporary removal of the suspect (accused) from office. At the same time, according to the author, when dismissing from office, it is the court that should immediately decide on the issue of assigning a monthly state allowance, so as not to worsen the situation of the suspect (accused), postponing the decision of this issue for an indefinite period. Non-payment of state benefits can be appealed in court.
Article 76 of the Labor Code of the Russian Federation does not list all the grounds for the temporary suspension of an employee from work. Other grounds are contained in other articles of the Labor Code of the Russian Federation, federal laws and other regulatory legal acts (paragraph 8, part 1, article 76 of the Labor Code of the Russian Federation).
Grounds for removing an employee from office
These grounds include, in particular:
- non-compliance by workers engaged in underground work with safety requirements or their non-use of means personal protection(Article 330.4 of the Labor Code of the Russian Federation);
- the grounds specified in the Decree of the Government of the Russian Federation of March 10, 1999 No. 263 “On the organization and implementation of production control over compliance with the requirements industrial safety at a hazardous production facility”;
- conflict resolution, verification of the reliability and completeness of information on the income of civil servants (clause 2, article 32 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”);
- improper execution by managers government organizations their duties during the state of emergency (Article 13 of the Federal Constitutional Law of May 30, 2001 N 3-FKZ "On the State of Emergency").
The grounds for removal from office must be specified in federal laws and other regulatory legal acts, other grounds are not allowed. In the event that an employee dismissed on grounds not enshrined in legislation applies to the court or the state labor inspectorate, the decision of the employer is recognized as illegal. In this case, the employer is obliged to pay the employee the average wage for the entire period of suspension.
The procedure for issuing a temporary suspension from office
The order to remove from office is drawn up by the employer in any form, since there is no unified form established by law. In the "Reason" line, you should indicate a reference to normative act that caused the dismissal of the employee. If the expiration date of the suspension is known when the order is issued, then it must be indicated in the order.
Removal from office means that the payment of wages to the employee is suspended. At the end of the period specified in the document, or after the elimination of the reasons that are grounds for suspension, the employee must be allowed to work. The employer draws up an order for admission to work in any form and acquaints the employee with it against signature.
Suspension time in the time sheet ( unified form T-12 or T-13) is marked by putting down an alphabetic (NB) or digital (35) code (not allowed to work for reasons provided for by law). Recording in work book is not done.
Suspension from office
Suspension of an employee in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation
Procedure
Obtain an official document containing the decision to suspend the employee
Suspension of an employee may be applied at the request of the competent authority (official) to suspend the employee. Bodies such as, in particular, the state labor inspectorate, the court, as well as bodies exercising state sanitary and epidemiological supervision, have the right to make a decision on suspension. Such a requirement is formalized in the form of a decision, protocol, resolution, etc. After receiving such a document, the employer has an obligation to immediately remove the employee from work.
Familiarize the employee with the dismissal order
The order should be printed and familiarized with the employee against signature - at the bottom of the order, the employee must sign and put the date of familiarization.
Pay for suspension time as simple
The period of suspension from work is paid as simple if the employee has not passed the mandatory medical examination or labor protection measures through no fault of his own. Downtime is included in the length of service, giving the right to the annual basic paid leave
In the time sheet, the period of suspension is marked by putting down an alphabetic (NB) or digital (35) code.
In addition to issuing an order, it is necessary to give an order to the accounting department to resume the payment of wages to the employee
The Constitution of the Russian Federation (Article 37) enshrines the provision that everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession. However, in the course of the investigation of criminal cases, especially those committed by officials using their official powers, one often encounters the fact that they, using their official position, hinder the course of the investigation in order to prevent the establishment of the truth in a criminal case and avoid punishment (destroy documents, material evidence, influence their subordinates, not allowing them to testify to the interrogator and investigator, etc.).
In this regard, the temporary suspension from office, provided for by Art. 114 Code of Criminal Procedure of the Russian Federation, takes special place among the measures of criminal procedural coercion. It is applied to a suspect or accused, restricts the constitutional right indicated above, and if it is a matter of removal from office of a civil servant, then the right to equal access to public service is also limited (Part 4, Article 32 of the Constitution of the Russian Federation) .
When resolving the issue of removal from office, the investigator had to take into account the nature of the charge, the strength of the evidence, and in particular the degree of connection of the criminal act with the duties of an official, the consequences of leaving the accused in office and possible harmful consequences in the further performance of his duties by the accused.
One should agree with the opinion of those authors who note that the attribution of removal from office to measures of restraint is debatable. So, according to R.Kh. Yakupov, the removal of the accused from office is closely related to preventive measures, but represents an independent type of procedural coercion measures, since it does not restrict freedom and personal integrity (which occurs when choosing preventive measures), but the constitutional right to choose the type of activity and profession.
Meanwhile, in the legal literature, the position is expressed that the removal of a suspected accused from office pursues not only the goal of preventing attempts to obstruct the elucidation of the truth, but also to ensure the execution of the sentence. So, in particular, A.V. Smirnova notes that such a measure “may ensure the execution of a future punishment in the form of deprivation of the right to hold a certain position or engage in certain activities. Therefore, the accused must be removed not only from public office, but also from work in his specialty, if the crime imputed to him is related to this work (especially if the sanction of the relevant article of the Special Part of the Criminal Code of the Russian Federation provides for punishment in the form of deprivation of the right to engage in certain activities) . For example, an accountant, a driver accused of a criminal violation of the rules can be suspended. traffic» .
However, it is rather difficult to agree with the designated position. As rightly noted by P.V. Gridyushko, the application of temporary suspension from office for all crimes for which the Criminal Code of the Russian Federation provides for deprivation of the right to hold a certain position or engage in certain activities as an indispensable duty of the body conducting the criminal process, "is meaningless" .
Supporting this position, it should be noted, firstly, that the decision to remove from office is not the duty of the investigator, the inquirer and the court, but his right. Secondly, it seems that the suspect or the accused will in no way be able to prevent the execution of such a sentence during the preliminary and trial proceedings.
In the criminal procedural legislation of Russia, the normative regulation of the measure of coercion under consideration, in comparison with the previous legislation, has undergone significant changes. In Art. 114 of the Code of Criminal Procedure of the Russian Federation, it is determined that the removal from office is temporary. It began to spread also to the suspect.
However, there is an opinion in the legal literature that rejects the possibility of applying a temporary suspension from office in relation to a suspect. According to O.S. Grechishnikova, when this measure of coercion is applied to the suspect, “there is a possibility for the removal of a person from office from the moment a criminal case is initiated, when evidence has not yet been collected, verified, both of the event of the crime itself and of its commission by this person. At the time of bringing in as an accused, these circumstances will already be sufficiently collected and confirmed.
However, it is rather difficult to agree with this position, “because, firstly, at the time a person is given the status of a suspect, there is already a certain minimum of evidence indicating both the event of the crime and the involvement of the suspect in its commission; secondly, in this case, the main purpose of the suspension of the suspect from office will be precisely to prevent him from being able to prevent the collection and confirmation of circumstances indicating his guilt, sufficient to bring charges.
Thus, the specified measure of coercion should first of all be applied to officials associated with an organized criminal community, against whom a criminal case has been initiated on the grounds of crimes in the field of economic activity or crimes against state power, interests public service and services in local governments.
For example, the coercive measure in question was applied to P., the head of the administration of one of the cities Kemerovo region, who ordered to place the funds of the city budget in one of the commercial banks under the control of an organized criminal community, and allowed them misuse. Since it was assumed that in relation to P. the petition for the application of a measure of restraint in the form of detention could be refused, the investigator, with the consent of the prosecutor, simultaneously sent a petition for the temporary removal of P. from office. This request was granted by the court.
In Art. 114 of the Code of Criminal Procedure of the Russian Federation, the legislator established a judicial procedure for the temporary removal of a suspect and the accused from office, which was strengthened by prosecutorial supervision in the form of the prosecutor giving consent to initiate a petition before the court. In the future, taking into account the changes made to the Criminal Procedure Code of the Russian Federation federal law dated June 5, 2007 No. 87-FZ, this petition began to be initiated before the court by the investigator with the consent of the head of the investigative body, and by the interrogating officer with the consent of the prosecutor.
A significant innovation is also the granting of the right to a monthly allowance in the amount of five minimum wages to a suspended defendant.
However, in the legal literature, many procedural scholars point to the possibility of applying the measure of procedural coercion under consideration only in relation to an official.
Thus, as rightly noted by B.T. Bezlepkin, since “a position in the broad (literal) sense of the word means a place occupied in the service, it should be considered that the coercive measure in question applies to all employees, that is, not only officials and government officials, but also municipal employees employees in local self-government bodies, as well as non-state (commercial and other) structures, suspected or accused in a criminal case ... ".
In this regard, in the criminal process, when applying temporary suspension from office, it is impossible to build on the concept of an official given in the Appendix to Art. 285 of the Criminal Code of the Russian Federation.
F.N. Bagautdinov, according to whom today one can hardly agree with such a point of view. “Many examples can be cited when leaders and officials, while behind bars, formally continue to hold their positions and, moreover, actively use them, hindering the investigation. Therefore, the adoption of a decision on the temporary removal of the accused from office is possible and even necessary even when he is taken into custody. Moreover, such a decision will be the basis for appointing another person to act in the position of the temporarily suspended accused.
Indeed, since the law does not prohibit, based on the circumstances of the case, it is possible to simultaneously choose in relation to the accused official: a preventive measure - bail and suspension from office; recognizance not to leave the place and temporary removal from office; personal guarantee and suspension from office; house arrest and suspension from office (in the latter case, one can, in particular, manage an enterprise while under house arrest).
At the same time, in our opinion, the removal from office of a person in respect of whom a measure of restraint in the form of detention has been chosen does not make any sense. In conditions of isolation from society, a person loses the opportunity to use his official position, which means that there will be no fear that he will interfere with the progress of the investigation.
The study of Art. 114 of the Code of Criminal Procedure of the Russian Federation shows that the legislator has not yet fully resolved a set of issues related to the procedure for applying a measure of procedural coercion in the form of removal of a suspect or accused from office. The grounds for the removal of the suspect, the accused from office are rather incorrectly formulated by using the evaluative expression “if necessary”, which is understood in law enforcement activities ambiguously, and practitioners experience objective difficulties in operating with it.
This is also confirmed by studies of the practical application of this measure. So, according to a study conducted by K.V. Zaderako, the measure of coercion in question is used quite rarely, including in the proceedings on cases of serious crimes, only three of the investigators interviewed by the scientist applied to the court to apply this measure of coercion.
In order to eliminate the said F.N. Bagautdinov proposed to enshrine in the law specific cases that necessitate the removal of the accused (suspected) from office. Among these, he named: a crime for which an official is involved, committed at his place of work or related to the activities of the enterprise or organization where he works; in a criminal case in which an official is involved, persons subordinate to him or her by work participate as accused, suspected or witnesses; an official, using his official position, impedes the proceedings on a criminal case.
According to B.C. Chistyakova, in order to apply this measure, “reasons are needed to believe that the official involved as an accused, while remaining in his position, will be able to continue criminal activity, interfere with the establishment of the truth in the case by destroying the traces of the crime, falsifying documents, influencing subordinate witnesses, accomplices, etc. It follows from this that removal from office can only be used to prevent the accused from committing such actions and thereby hinder the successful course of the investigation into the case.
Even earlier, Yu.D. Livshits expressed the opinion that it would be quite legitimate to remove a person from his position if the crime committed by him, although not related to his position, discredits this person in the eyes of others, mainly subordinates, as a result of which the prestige of the institution as a whole is undermined.
However, from the point of view of our time, it is rather difficult to agree with this opinion. Within the framework of the principle of the presumption of innocence, such a judgment cannot be recognized as correct. "Discrediting the institution where the suspect or the accused works, in no case can be the basis for temporary removal from office."
Without disputing in general the significance of the circumstances proposed above as grounds for temporary removal from office, we propose to enshrine the following wording in the law: there are sufficient grounds to believe that the suspect or the accused, remaining at the same place of work, may interfere with the criminal proceedings, compensation for the crime caused damage or continue to engage in criminal activities associated with being in this position.
Temporary removal from office, in accordance with Part 1 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, is carried out according to a reasoned decision of the judge, issued on the basis of a petition, which is initiated by the interrogator with the consent of the prosecutor and the investigator with the consent of the head of the investigative body at the place of preliminary investigation, which leads to the conclusion that it is impossible to remove the accused (defendant) from office in the judicial stages and at the discretion of the judge. We believe that the need for removal from office may also arise in the judicial stages, and therefore the judge cannot be deprived of the right in question. In this connection, Art. 114 of the Code of Criminal Procedure of the Russian Federation needs an appropriate addition.
In Art. 114 of the Code of Criminal Procedure of the Russian Federation does not regulate the procedure for consideration by a judge of a petition to remove the accused from office. This article does not indicate that the petition is considered according to the rules established by Art. 165 of the Code of Criminal Procedure of the Russian Federation (as, for example, it is done in Article 115 of the Code of Criminal Procedure of the Russian Federation in relation to the consideration by the judge of a petition to seize property).
In this regard, B.B. Bulatov and V.V. Nikolyuk propose to consider such a petition according to the rules of Art. 165 Code of Criminal Procedure of the Russian Federation.
K.V. does not agree with this position. Zaderaco, who quite rightly believes that the removed person has the right to know the motives for removal from office and be able to object.
In this regard, the opinion of this researcher should be supported that an application for choosing a measure of coercion in the form of temporary removal from office should be considered in the manner prescribed by Art. 108 of the Code of Criminal Procedure of the Russian Federation, which should be expressly stated in Art. 114 Code of Criminal Procedure of the Russian Federation.
Thus, the execution of a court decision on the removal of a serviceman from office in this case is carried out, as a rule, not by issuing an order to remove him from office, but by releasing him from office and placing him at the disposal of the corresponding commander (chief) before the court makes a decision.
In accordance with sp. 10 hours 2 tbsp. 29 and part 2 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, temporary removal from office is carried out on the basis of a court decision. However, according to part 5 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, for the removal from office of the head of the highest executive body of state power of a constituent entity of the Russian Federation in the event that he is charged with committing a grave or especially grave crime, a special procedure is provided, which involves the submission by the Prosecutor General of the Russian Federation to the President of the Russian Federation of a proposal for the temporary removal of the said person from office .
Thus, when the head of the highest executive body of state power of a constituent entity of the Russian Federation is removed from office, a court decision is not required. Only the decision of the President of the Russian Federation is enough. In this regard, we can conclude that the legislator introduced, in essence, a new participant in criminal proceedings - the President of the Russian Federation.
At the same time, as rightly noted in the legal literature, the President of the Russian Federation "for all the importance of his position as head of state cannot replace the judiciary" .
In this regard, in part 5 of Art. 144 of the Code of Criminal Procedure of the Russian Federation, it is necessary to consolidate the provision that the decision on temporary removal from office in the above situation should be taken by the Supreme Court of the Russian Federation on the basis of the proposal of the President of the Russian Federation, based on the proposal of the Prosecutor General of the Russian Federation.
In this situation, it seems unjustified that the list of subjects entitled to annulment of this measure does not include a judge, who, undoubtedly, should have powers both in the course of pre-trial proceedings (for example, when considering a complaint against a rejected application for annulment of this measure), and and in the course of the court proceedings (if it is no longer necessary and the measure has not been canceled by the investigator and the prosecutor) to make a decision to cancel the removal from office.
Based on the results of the study of the above questions, the following conclusions can be drawn:
1 The legislator did not provide optimal regulatory regulation
measures of procedural coercion in the form of temporary removal from office. As a result, practitioners experience objective difficulties in applying this measure.
2 For the sake of improvement legal regulation the said measure of procedural coercion and the exclusion of law enforcement errors, it is necessary to state Art. 114 of the Criminal Procedure Code of the Russian Federation “Temporary removal from office” as follows: “1 Temporary removal from office consists in prohibiting the suspect or the accused from performing official duties, performing the work that he performed or engaging in activities in which he was engaged.
2 Suspension from office is elected if there are sufficient grounds to believe that the suspect or accused, while remaining at the same place of work, may interfere with the proceedings in a criminal case, compensation for damage caused by a crime, or continue to engage in criminal activities related to being in this position.
3 If it is necessary to temporarily remove the suspect or the accused from office, the prosecutor-investigator, with the consent of the head of the investigative body, and the interrogating officer, with the consent of the prosecutor, file an appropriate petition with the court at the place of the preliminary investigation.
4 Within 24 hours from the moment of receipt of the petition, the judge, in the manner prescribed by Article 108 of this Code, issues a decision on the temporary removal of the suspect or the accused from office or on refusal to do so.
5 The decision on the temporary removal of the suspect or the accused from office is sent to the place of work or to the head of a higher organization (institution).
6 Temporary removal of a suspect or accused person from office is canceled on the basis of a decision of the investigator, interrogating officer, judge or court ruling, when the application of this measure is no longer necessary.
7 If a high-ranking official of a constituent entity of the Russian Federation (the head of the supreme executive body of state power of a constituent entity of the Russian Federation) is involved as an accused and charged with committing a grave or especially grave crime, the Prosecutor General of the Russian Federation, with the consent of the President of the Russian Federation, shall file a petition for temporary suspension from positions of the said person before the Supreme Court of the Russian Federation.
8 The decision to remove the accused from office after the transfer of the criminal case to the court is made by the judge (court), if there are grounds for this, specified in part two of this article, at the request of the prosecution or on its own initiative.
9 A suspect or accused who has been suspended from office has the right to a monthly allowance, which is paid to him in accordance with paragraph 8 of the second part of Article 131 of this Code.”