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Legal recommendations for NGOs in the event of an ‘unscheduled comprehensive inspection’

22 March 2013 


Source: HRO.org (info)
All civil society organizations should not only prepare morally for an unscheduled inspection by the Prosecutor’s Office, but also call to mind and study afresh the following Russian laws and particular articles of the Criminal Code:

1. Federal Law ‘On the Public Prosecutor’s Office of the Russian Federation’, Articles 21 and 22.

According to Article 21, Section 2, of the federal law ‘On the Public Prosecutor’s Office of the Russian Federation’ inspections of legal compliance must be conducted on the basis of information about violations of the laws received by the Prosecutor’s Office, and which demand the intervention of the Prosecutor’s Office. Consequently, inspections can be conducted only in the event that information has been received by the Prosecutor’s Office about violations of the law. Those subject to inspection have the right to demand that the Prosecutor’s Office present confirmation of the existence of such information: of what violations and of precisely which laws has the Prosecutor’s Office been informed? And by whom and when was this information supplied? Prosecutors have the right not to reply, but the questions must be asked.

The law on the Prosecutor’s Office establishes the roles of prosecutor, deputy prosecutor and staff of the prosecutor’s office. Article 22 of the federal law ‘On the Prosecutor’s Office of the Russian Federation’ gives the right of unhindered access and the right to demand documents exclusively to the prosecutor. Moreover, in practice it is the staff of the Prosecutor’s Office who conduct the inspections.

2. Articles 176 & 177 of the Criminal Code of the Russian Federation. Inspection.

It happens that those who are conducting inspections ask the staff and directors of the NGOs not only to provide documents, but also that they be allowed to inspect the premises.

An inspection is itself a form of investigative procedure which is regulated by the Criminal Code of the Russian Federation. In accordance with Article 176, Section 1, of the Criminal Code of the Russian Federation, the inspection of the scene of an event, a locality, a residence, or other premises, objects and documents, is conducted for the purposes of finding evidence of a crime, or the investigation of other circumstances that have significance for a criminal investigation.

In accordance with Article 176, Section 2, of the Criminal Code of the Russian Federation, an inspection of the scene of an event, documents and objects can be conducted before the formal opening of a criminal investigation into the case. (These changes have only just entered into force, on 15 March 2013.)

In conducting an inspection the order of actions laid down in Article 177 of the Criminal Code of the Russian Federation must be observed (the participation of witnesses is obligatory, a representative of the administration of the NGO must be present, and so on.)

Moreover, an inspection is a form of investigative procedure. Consequently, it must be conducted by a person authorized to conduct criminal investigative procedures. A prosecutor does not have the right to conduct any criminal investigative procedures.

3. Federal law "On Criminal Investigative Procedure", Articles 7 and 13.

Questioning, and examination of buildings, premises, and structures, are criminal investigative procedures. Article 13 of the federal law ‘On Criminal Investigative Procedure’ establishes a list of agencies that are empowered to conduct criminal investigations. This list does not include the Prosecutor’s Office. Consequently, staff of the Prosecutor’s Office do not have the right to conduct criminal investigative procedures and carry out questioning, or examination of buildings, premises or structures.

The grounds for conducting a criminal investigative procedure are listed in Article 7 of the federal law ‘On Criminal Investigative Procedure’.

4. Federal law "On protecting the rights of legal persons and individual entrepreneurs during the conduct of state oversight (review) and municipal oversight,’ Article 10 ‘Organization and conduct of an unscheduled inspection.’

In fact not one of the 20 provisions of this article has been observed during the conducting of the recent on-site unscheduled, comprehensive inspections of Russian NGOs.

5. In conducting inspections the presence of a legal professional (lawyer) of the organization being inspected is desirable. It is therefore necessary to have previously signed a contract with a legal professional, if such a person is not one of the staff members of the NGO.

A violation of Articles 1-4 of Russian legislation cited above gives grounds to interpret the actions of those agencies conducting the recent unscheduled, on-site, comprehensive inspections of Russian NGOs as excessive if not wholly unlawful. This also gives grounds to contest these actions with a higher level of the prosecutor’s office and in the courts, and also grounds to refuse to permit them.

Source: Cogita.ru
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