Can a criminal record among close relatives of a spouse affect municipal service? Conviction and criminal record: consequences for the civil service If a close relative is convicted of admission to the civil service.

13 of the Federal Law of March 2, 2007 No. 25-FZ “On municipal service in the Russian Federation.” Currently, according to this article, the following cannot enter the service of municipal bodies: citizens recognized by the court as incompetent or partially capable; those sentenced to a punishment that precludes them from performing official duties; those who refused to undergo the procedure for access to state secrets; suffering from diseases, the list of which is established by the Government of the Russian Federation; who are relatives or relatives of the head of the municipality; those who have lost Russian citizenship or acquired citizenship of another state (not counting states with which Russia has concluded international treaties on the possibility of municipal service); who submitted forged documents or knowingly false information upon entering the service; failed to provide information necessary to combat corruption; those who did not complete conscription military service without legal grounds; who have reached the age of 65 years. The explanatory note to the bill states that there is currently inequality between state and municipal employees.

Civil service and criminal record of one of the parents

And what to do in this case? I know that the checks there are serious, starting from various certificates from the PND, etc. and ending with parental checks. But I'm not sure about the latter. Actually, the situation. My son is finishing college and there is an offer to join the bailiff service. This is considered a civil service. I recently found out that BM, whom we broke up with shortly after the birth of the child, had served time in his youth for stealing a motorcycle long before we met him.

Criminal record of close relatives

Entering the civil service

And the application form requires that you indicate all close relatives. Moreover, HR employees have the right to check the information you provided in the application form. If it is determined that you deliberately did not indicate any of your relatives, you may be denied admission to the civil service. The civil service requires that those entering it be as sincere and truthful as possible, since the fight against corruption in government bodies is currently underway.

Criminal records of relatives upon entering the civil service

The procedure for undergoing medical examination, the list of such diseases and the form of conclusion of the medical organization are established by the federal executive body authorized by the Government of the Russian Federation; 5) close relationship or relationship (parents, spouses, children, brothers, sisters, as well as brothers, sisters, parents, children of spouses and spouses of children) with the head of the municipal entity, who heads the local administration, if filling a municipal service position is associated with direct subordination or under the control of this official, or with a municipal employee, if the filling of a municipal service position is associated with the direct subordination or control of one of them to the other; (edited)

You can be fired from a civil service for lying on an application form.

The man went to court and was reinstated. However, the Supreme Court of the Russian Federation sided with the employer.

Information about the employee's criminal record became known after an internal check. The inspectors found that in the questionnaire, in response to the question “Have you or your close relatives been convicted, when and for what?” the applicant put a dash through. In addition, listing his former places of work, the man wrote down that he held the position of deputy head of the LLC for three years.

My husband is in prison, can I get a civil service job?

Restrictions related to the civil service 1. A citizen cannot be accepted into the civil service, and a civil servant cannot be in the civil service if: 1) he is declared incompetent or partially capable by a court decision. entered into legal force; *16.1.1) 2) sentencing him to a punishment that precludes the possibility of performing official duties in a position of state service (civil service), by a court verdict that has entered into legal force, as well as in the case of a sentence that has not been withdrawn or extinguished in the manner established by federal law criminal record; *16.1.2) 3) refusal to undergo the procedure for obtaining access to information constituting state and other secrets protected by federal law, if the performance of official duties in a civil service position for which a citizen is applying, or in a civil service position being filled by a civil servant is related to use of such information; *16.1.3) 4) the presence of a disease that prevents entry into the civil service or its completion and confirmed by the conclusion of a medical organization.

Hello. This is a question: I am a municipal employee. I am going to marry a young man whose father was in prison for robbery. Could this somehow affect my work? (i.e. dismiss for non-compliance, etc.).

• Question: No. 1426 dated: 2015-01-21.

On the merits of the question asked, we report the following.

In accordance with Art. 10 Federal Law “On Municipal Service in the Russian Federation” dated March 2, 2007 No. 25-FZ (hereinafter referred to as the Federal Law “On Municipal Service in the Russian Federation”), a municipal employee is a citizen who performs in the manner determined by municipal legal acts in accordance with federal laws and laws of the constituent entity of the Russian Federation, duties in the position of municipal service for salary paid from the local budget.

By virtue of Art. 13 of the Federal Law “On Municipal Service in the Russian Federation”, a citizen cannot be hired for municipal service, and a municipal employee cannot be in municipal service in cases other than those listed in this article, convicting him to a punishment that precludes the possibility of performing official duties in a municipal service position, by a court verdict that has entered into legal force.

In accordance with Art. 19 Federal Law “On Municipal Service in the Russian Federation”, in addition to the grounds for termination of an employment contract provided for by the Labor Code of the Russian Federation, an employment contract with a municipal employee can also be terminated at the initiative of a representative of the employer (employer) in the case of:

1) reaching the age limit established for filling a position in the municipal service;

2) termination of citizenship of the Russian Federation, termination of citizenship of a foreign state - a party to an international treaty of the Russian Federation, according to which a foreign citizen has the right to be in municipal service, acquisition of citizenship of a foreign state or receipt of a residence permit or other document confirming the right to permanent residence of a citizen of the Russian Federation on the territory of a foreign state that is not a party to an international treaty of the Russian Federation, according to which a citizen of the Russian Federation who has citizenship of a foreign state has the right to be in municipal service;

3) non-compliance with restrictions and prohibitions related to municipal service and established by Articles 13, 14, 14.1 and 15 of the Federal Law “On Municipal Service in the Russian Federation”.

4) application of administrative punishment in the form of disqualification.

Thus, the Federal Law “On Municipal Service in the Russian Federation” does not contain restrictions when you perform municipal service based on the criminal record of the parent of your future spouse.

The only provision in the Federal Law “On Municipal Service in the Russian Federation” regarding the existence of a conviction for punishment is indicated only in relation to the municipal employee himself, but not as in relation to members of his future family. The fact that your future spouse has a parent convicted of robbery should not in any way affect your work activity.

For a more detailed answer to the question you are interested in, we suggest you contact the reception office of lawyer Sergei Sergeevich Ivlev at the address: Orenburg, st. Shevchenko 20B, office 414, tel.: 8-912-343-72-22.

Attention! The information provided in the article is current at the time of publication.

In the article we will talk about whether such a refusal is legal, whether it is worth hiding your criminal record in front of an employer, and in what professions a former convict will not be able to realize himself. Contents of the article ○ What types of criminal records exist? ○ Restrictions by law: where can people with a criminal record not work? ○ Are the grounds for obtaining a criminal record taken into account? ○ Who can obtain information about a criminal record, how does the employer find out? ○ How to get a job if your criminal record has been expunged or expunged? ✔ Column about criminal record in the application form. ✔ Reasons for refusal, how to prove it? ○ Advice from a lawyer: ✔ Several years ago I was brought to criminal liability, but was not convicted, there may be problems with employment?✔ One of my relatives is serving time for a criminal offense, could this be an obstacle for me to enter the FSB or Ministry of Internal Affairs academy?✔ When applying for a job, I filled out a form and wrote “No” in the column about criminal record.

Employment in the civil service with an expunged criminal record

The certificate contained information about the presence of an expunged criminal record (more than 20 years ago, article Beatings) read answers (1) Topic: Civil Service Is it possible to hire a person into the state civil service with an expunged criminal record for a bribe? read answers (1) Topic: Civil Service Is it possible to hire a civil servant civil service of a person with an expunged criminal record for a bribe? If not, what documents regulate this? read answers (1) Topic: Providing false information When applying for the state civil service, I indicated the absence of a criminal record in the application form - since I really didn’t know about its existence (i.e. read answers (1) Topic: Admission to state

Criminal record in public service

Due to the fact that you have an unexpunged or outstanding criminal record, the service contract concluded with you is subject to termination. Article 86 of the Criminal Code of the Russian Federation provides for expungement periods for criminal records.

In particular, a criminal record is considered expunged in relation to a conditionally convicted person upon expiration of the probationary period. A criminal record is removed by a judicial act before the expiration of the established period for expunging the criminal record.
If your criminal record has not been expunged to date, you have the right to petition the court, on the basis of Article 86 of the Criminal Code of the Russian Federation, for early expungement of your criminal record. An expunged or expunged criminal record cancels all consequences associated with a criminal record, including a ban on applying for a position in the state civil service.

However, if the criminal record has now been cleared and expunged, then there are no grounds for terminating the service contract concluded with you.

Entering the civil service with an expunged criminal record

Attention

But when asked whether you were prosecuted and on what basis, you should answer the truth, indicate the article and the year in which the sentence was passed. It is highly recommended not to provide false information about yourself, since having an expunged or expunged criminal record is not an obstacle to employment by law (unless we are talking about the educational and law enforcement spheres).

Along with this, concealment of data is a reason for dismissal of an employee when it comes to such areas as ensuring transport security, civil service (clause 6, part 1, article 10 of Law No. 16-FZ, clause 8, part 1, article 16 of the Law No. 79-FZ). Providing false documents during employment is fraught with danger for all citizens (Art.

81 Labor Code of the Russian Federation).
Reasons for refusal, how to prove? If the employer somehow finds out about your criminal record, which has already been cleared or expunged, he does not have the right to refuse to hire you or fire you (again, if this is not working with children or in law enforcement agencies). The difficulty arises from the fact that the wording of dismissal may be completely different.

Proving the real reason for dismissal can be very difficult, so you will need the help of an experienced lawyer. To defend your interests, you have the right to go to court.

So, in accordance with Art. 3 of the Labor Code of the Russian Federation, discrimination in the sphere of labor is prohibited. Request an official refusal of employment by the employer or ask for a certificate stating the reasons for dismissal. It should be attached to the statement of claim.

If a criminal record is cleared and expunged, is it possible to work in the civil service?

Info

The following types of criminal records can be distinguished:

1. Current criminal record - it happens to a person who is serving a sentence or has just been released from it, and the required period has not yet passed.
2. Conditional conviction - is established for people who have been given a suspended sentence and is essentially no different from the current one. If the offender proves by his behavior that he does not deserve punishment, the criminal record is subject to early expungement through the court.
3. Expunged criminal record – occurs when a person, after serving his sentence, has not committed a crime for a certain period.
4. Expunged criminal record - removed by a court or other body earlier than the established period due to the good behavior of the offender or other reasons (amnesty, pardon).

Information about a person’s criminal record is stored in the GIAC of the Russian Federation.

There is only one way to remove it from the database - to remove the criminal record for rehabilitating circumstances.

That is, to find a person innocent of committing a criminal offense. Return to content ○ Restrictions by law: where can people with a criminal record not work? A convicted citizen cannot work:

1. With children. “Persons who have or those who had a criminal record, as well as those who were subject to criminal prosecution” (Art.

   351.1 Labor Code of the Russian Federation).

2. In the field of transport security (clause 1, part 1, article 10 of the Law “On Transport Security”).
3. For the position of aviation personnel specialist (clause 3 of Art.

Law “On the Securities Market”).

• Civil servants, including employees of the Ministry of Emergency Situations (Article 16 of Law No. 79-FZ).
• Bailiff (clause 3 of article 3 of Law No. 118-FZ).
• Prosecutor (clause 2 of article 40.1 of Law No. 2202-1).
• In the bodies of the FSB (Article 16 of Law No. 40-FZ).
• In the internal affairs bodies. According to clause 31.1 of the Order of the Ministry of Internal Affairs No. 595, data on a candidate for internal affairs employees is checked in the records of various legal structures, including in the GIAC database of the Russian Federation.
• Judge (para.
  2 p. 1 art. 4 of Law No. 3132-1).
• Military (Article 23 of Law No. 53 Federal Law).

Domestic “official” legislation has traditionally been based on restricting access to public service for persons who have committed a criminal offense. It should be noted that the law contains a restriction, and not a complete ban, and therefore personnel services have a huge number of problems associated with the application of these norms. In addition, workers interpret the concept of “restricted access to public service” in their own way, which is why courts consider many labor disputes, often making decisions that contradict each other. We want to review and comment on the most interesting court decisions, and warn the personnel services of public authorities against making common mistakes.

Clause 2, Part 1, Art. 16 of the Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” (hereinafter referred to as the Civil Service Law) establishes that a citizen cannot be accepted into the civil service, and a civil servant cannot be in the civil service in the event of conviction him to a punishment that excludes the possibility of performing official duties in a state service position (civil service), by a court verdict that has entered into legal force, as well as in the case of a criminal record that has not been expunged or expunged in accordance with the procedure established by federal law. As you can see, the removal or expungement of a criminal record in this case is considered as a circumstance that eliminates this restriction.

Note! A person who has a criminal record expunged or expunged in accordance with the federal law has the right to perform civil service.

The meaning of restricting access to public service for persons who have committed a criminal offense is associated with the increased social significance of this type of professional activity.

In practice, in the work of personnel services, there are quite a large number of problems associated with the application of these restrictions. Conventionally, they can be divided into two groups:

Group 1. Situations when a previously convicted citizen tries to occupy a position in the state civil service.

Group 2. Situations where a conviction is made against a civil servant.

CONVICTION REMOVED OR EXPENSED

As for the first group, controversial situations usually arise due to the fact that, although the current legislation does not prohibit the employment of citizens whose criminal records have been cleared or expunged in the prescribed manner, heads of state bodies, as a rule, do not want to see such persons on duty. As a result, a citizen with a cleared or expunged criminal record is faced with a choice: either honestly report the presence of a criminal record (which will most likely result in a refusal to hire under a plausible pretext or simply “special” attention from the competition commission), or to hide this fact. Many choose the second path, and the personnel services of government agencies do not always have a real opportunity to find out hidden information.

The state civil servant, upon entering the service, concealed the fact that he had an expunged criminal record. Now, two years later, this information has “surfaced”. The manager is outraged and demands to terminate the contract. On what basis can this be done now? After all, formally, having an expunged criminal record does not prevent service.

The mere presence of a criminal record, which was expunged at the time of entry into the state civil service, does not, indeed, prevent the filling of a position in the state civil service and its completion. Thus, in the situation under consideration, the service contract cannot be terminated under clause 13, part 1, art. 33 (failure to comply with restrictions and failure to fulfill obligations established by the Civil Service Law and other federal laws) with reference to clause 2, part 1, art. 16 of the Civil Service Law.

At the same time, the Civil Service Law provides for another basis for termination of a service contract, which, in principle, can be applied in this case: the submission by civil servants of forged documents or knowingly false information to the employer’s representative when concluding a service contract (Clause 7, Part 1, Article 37 ). Failure to indicate in the application form information about a previous criminal record by a person entering the civil service may be considered as providing the employer's representative with knowingly false information when concluding a service contract. But when deciding to terminate a service contract on this basis, take into account the established judicial practice on this issue.

We quote the document

1. A person convicted of committing a crime is considered to have a criminal record from the day the court’s conviction enters into legal force until the criminal record is expunged or removed. A criminal record in accordance with this Code is taken into account in case of recidivism of crimes, imposition of punishment and entails other legal consequences in cases and in the manner established by federal laws. 2. A person released from punishment is considered to have no criminal record. 3. A criminal record is expunged: a) in relation to persons on probation - after the expiration of the probationary period; b) in relation to persons sentenced to more lenient punishments than imprisonment - after one year after serving or executing the sentence; c) in relation to persons sentenced to imprisonment for crimes of minor or medium gravity - after three years after serving the sentence; d) in relation to persons sentenced to imprisonment for serious crimes - after six years after serving the sentence; e) in relation to persons convicted of especially serious crimes - after eight years after serving the sentence. 4. If a convicted person, in accordance with the procedure established by law, was released early from serving a sentence or the unserved part of the sentence was replaced with a milder type of punishment, then the period for expunging the criminal record is calculated based on the actually served term of the sentence from the moment of release from serving the main and additional types of punishment. 5. If the convicted person behaved impeccably after serving his sentence, then, at his request, the court may remove his criminal record before the expiration of the criminal record. 6. Expungement or removal of a criminal record cancels all legal consequences associated with a criminal record. Article 86 of the Criminal Code of the Russian Federation

In judicial practice, there are often cases where state civil servants dismissed under clause 7 of part 1 of art. 37 of the Law on Civil Service, in a situation similar to that discussed above, they subsequently went to court with a claim for reinstatement in service. Until a certain point, judicial practice followed predominantly the path of satisfying such claims.

The plaintiff filed a lawsuit against the Main Directorate of the Federal Registration Service of the Arkhangelsk Region and the Nenets Autonomous Okrug for reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage. In the basis of the claim, he indicated that he was hired into the civil service and was appointed to the position of leading specialist of the department, by a further order he was released from the position he was filling and dismissed from the civil service for providing knowingly false information to the employer’s representative when concluding a service contract (clause 7 of Part 1 Article 37 of the Civil Service Law). The basis for his dismissal was the fact that in the questionnaire he did not indicate information about a previously existing and expunged criminal record.

The Oktyabrsky District Court of Arkhangelsk, by its decision dated July 8, 2005, fully satisfied the claim. Subsequently, this decision was upheld by the ruling of the Arkhangelsk Regional Court dated 08.08.2005 in case No. 33-1876.

The plaintiff’s argument in this case, fully accepted by both courts, was based on the fact that, in accordance with Part 6 of Art. 86 of the Criminal Code of the Russian Federation, expungement or removal of a criminal record cancels all legal consequences associated with a criminal record. Accordingly, a person whose criminal record has been cleared or expunged is considered to have no criminal record, and a negative answer to the question about criminal record when applying for the civil service is not false information.

Similar decisions were made by some other judicial bodies. However, in recent years, the trend in this area has changed to the opposite: in the situation under consideration, the courts began to deny plaintiffs reinstatement in the civil service. This is due, first of all, to the position taken on this issue by the Supreme Court of the Russian Federation.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation considered at a court hearing a civil case based on K.’s claim against Regional Directorate No.<...>Federal<...>agency of Russia on declaring illegal the order to terminate the service contract and dismissal from the civil service, reinstatement in the service in the previous position, recovery of amounts of money for the period of forced absence, compensation for moral damage according to the supervisory complaint of the Regional Directorate No.<...>Federal<...>agency of Russia against the decision of the Snezhinsky City Court of the Chelyabinsk Region dated December 22, 2009 and the ruling of the Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court dated February 12, 2010, which partially satisfied the stated requirements.

The panel of judges found that K. filed a lawsuit against Regional Administration No.<...>Federal<...>agency of Russia (hereinafter also referred to as the Regional Directorate) on recognizing illegal the order of the head of the Regional Directorate dated October 30, 2009 No. 78l on termination of the service contract and dismissal from the state civil service, on reinstatement in the position of head of the department<... >Regional administration, collection of monetary allowance for forced absence, compensation for moral damage. In support of the claim, K. referred to the fact that from June 26, 2006 he was in the state civil service as head of a department<...>Regional management. According to order No. 78l dated October 30, 2009, he was dismissed from service under clause 7, part 1, art. 37 of the Law on Civil Service for providing knowingly false information when concluding a service contract. The basis for its publication was: information received from the Department of Internal Affairs of the city of Snezhinsk that K. was twice convicted by the Snezhinsk City Court (10/25/1995 and 04/04/1998) for committing crimes, and data from a documentary verification of information about his place of registration and residence.

He considered the dismissal illegal, since he did not provide any false information when concluding the contract.

Satisfying the stated demands, the court of first instance came to the conclusion that K.’s dismissal was illegal, since the plaintiff did not knowingly provide false information. At the same time, the court indicated that, by putting a dash in column 9 of the questionnaire about the presence of a criminal record, the plaintiff proceeded from the fact that at the time of filling out the specified document, the criminal records were expunged, and therefore he considered himself not to have been convicted in the sense given to this circumstance by the criminal legislation of the Russian Federation.

The Judicial Collegium of the Supreme Court of the Russian Federation, however, considered that the court’s conclusion that K.’s concealment of the fact of a criminal record could not entail legal consequences when deciding the issue of the possibility of concluding a service contract, and therefore could not be a basis for dismissal under clause 7 h . 1 tbsp. 37 of the Civil Service Law is incorrect, based on an incorrect interpretation of the rules of substantive law governing controversial legal relations.

According to clause 7, part 1, art. 37 of the Civil Service Law, a service contract may be terminated by a representative of the employer, and a civil servant may be released from the civil service position being filled and dismissed from the civil service if he submits false documents or knowingly false information to the employer’s representative when concluding a service contract.

In accordance with Part 16 of Art. 44 of the said Law, the submission by a civil servant of knowingly false information when concluding a service contract is the basis for terminating the service contract with him and dismissing him from the civil service, provided that the fact of providing such information actually took place and if it is established in compliance with the rules for verifying documents established by law .

Thus, from the literal content of the above norms it follows that it is the very fact of submitting forged documents and knowingly false information that serves as the basis for termination of a service contract at the initiative of the employer’s representative, regardless of whether the information or documents presented could influence the possibility of concluding a service contract with the person , or be a basis for refusal to conclude it (decision of the Supreme Court of the Russian Federation dated December 24, 2010 No. 48-B10-9).

A similar case was considered by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on June 24, 2011. In this case, the Judicial Board recognized as legal the fact of dismissal from the civil service under clause 7 of part 1 of Art. 37 of the Law on Civil Service T., who, having an expunged criminal record, in response to the question specified in the application form when entering the civil service, “Have you or your close relatives been convicted, when and for what,” put a dash in this column. In the questionnaire, in the column “Work performed since the beginning of employment”, he indicated the period of work from 1996 to 2003 in the position<...>, although until August 2002 he was serving a criminal sentence in prison (decision of the Supreme Court of the Russian Federation dated June 24, 2011 No. 45-811B11-7).

In both examples given, dismissed civil servants provided other false information, in addition to information about their criminal record (in the first case, about their place of residence, in the second, about their work experience). However, in both cases, the Supreme Court of the Russian Federation considered it necessary to emphasize that failure to inform about an expunged criminal record in itself constitutes the presentation of false information.

At the same time, the plaintiffs’ argument itself is that, in accordance with Part 6 of Art. 86 of the Criminal Code of the Russian Federation, the expungement or removal of a criminal record cancels all legal consequences associated with a criminal record, the Supreme Court of the Russian Federation did not refute it in any way, and in general completely ignored it, which makes, in our opinion, its decision not completely convincing. However, at present, taking into account the position taken by the highest judicial body, it should be assumed that failure to provide information upon entering the civil service, including information about a cleared or expunged criminal record, is interpreted as the presentation of false information with all the ensuing consequences .

CONVICTION OF A STATE CIVIL SERVANT

A different situation occurs in government bodies if a court verdict is passed against a person already in the civil service. Since Part 1 of Art. 86 of the Criminal Code of the Russian Federation establishes that a person convicted of committing a crime is considered to have been convicted from the day the court’s guilty verdict enters into legal force, from the same moment based on clause 2 of part 1 of Art. 16 of the Law on Civil Service, an employee cannot be in the service, regardless of what punishment is assigned to him.

The Civil Service Law, in principle, provides for two options for the dismissal of civil servants who have been convicted by a court.

Option 1. According to clause 13, part 1, art. 33 (failure to comply with restrictions and failure to fulfill obligations established by the Civil Service Law and other federal laws) with reference to clause 2, part 1, art. 16 of the Civil Service Law.

Option 2. According to paragraph 1, part 2, art. 39 of the Civil Service Law - in connection with the conviction of a civil servant to a punishment that excludes the possibility of filling a civil service position, by a court verdict that has entered into legal force.

In practice, both options for dismissal are used, however, it should be borne in mind that the second case is narrower, since clause 1, part 2, art. 39

The Civil Service Law can be used only if the employee is sentenced to a punishment that objectively excludes the performance of duties in a civil service position (such could be, for example, actual imprisonment or a ban on holding certain positions and engaging in certain activities). Accordingly, it appears that the rule contained in clause 13, part 1, art. 33 of the Civil Service Law is general, and in paragraph 1 of Part 2 of Art. 39 of the Law - special.

If an employee is sentenced to a punishment that does not objectively make it impossible to perform his duties in a civil service position (for example, he is sentenced to pay a fine), he is subject to dismissal under clause 13, part 1, art. 33 of the Law on Civil Service, otherwise - according to clause 1, part 2, art. 39 of the Civil Service Law.

Please note that if a government employee challenges a dismissal based on a ground that does not “apply” to his or her case, there is a possibility that he or she will be reinstated.

Thus, F. filed a lawsuit against the Amur Customs to declare the dismissal illegal, reinstate him at work, recover average earnings for the period of forced absence, and compensate for moral damages. In support of the claim, he indicated that by order he was dismissed from his position in accordance with paragraph 1 of Part 2 of Art. 39 of the Civil Service Law in connection with a conviction to a punishment that precludes the possibility of filling a civil service position. He considered his dismissal under this article illegal, since he was sentenced to a fine, which did not exclude the possibility of filling a civil service position.

By the decision of the Central District Court of Komsomolsk-on-Amur dated September 7, 2010, F.’s claims were satisfied, since “the plaintiff was sentenced to a fine; he was not given an additional penalty in the form of deprivation of the right to hold certain positions in the public service.” The Judicial Collegium for Civil Cases of the Khabarovsk Regional Court, by its cassation ruling dated January 21, 2011 No. 33-251, upheld this decision.

Sometimes in practice, personnel officers of state bodies select other articles of the Law on the State Civil Service, in addition to those indicated above, when dismissing convicted civil servants.

Attention! Controversial decision

Thus, the state inspector of the department of state control, supervision, protection of aquatic biological resources and their habitat for<...>D. was sentenced by the Kamyshlovsky City Court of the Sverdlovsk Region dated July 15, 2010 to a fine in the amount of 120,000 rubles, after which he was dismissed under clause 9 of part 1 of Art. 37 of the Civil Service Law. The dismissal was challenged by him, since, according to the plaintiff, “in paragraph 9 of Part 1 of Art. 37 of the Civil Service Law does not contain such grounds for dismissal as the conviction of a civil servant to punishment by a court verdict that has entered into legal force, and the presence of an unexpunged and outstanding criminal record.”

By the decision of the Leninsky District Court of Tyumen dated July 5, 2011, the dismissal under this article was recognized by the court as legal with reference to clause 2, part 1, art. 16 of the Civil Service Law.

We see this conclusion of the court as quite controversial, since the Law on Civil Service, as we have already indicated above, contains special rules that allow the dismissal from the civil service of persons against whom a court verdict has been passed. In any case, we recommend that employees of personnel services of state bodies in such situations still rely on clause 13, part 1, art. 33 of the Civil Service Law with reference to clause 2, part 1, art. 16 of the Law or on clause 1, part 2, art. 39 of the Law, depending on the punishment to which the civil servant is sentenced.

In judicial practice, various issues related to the dismissal of convicted civil servants are also often raised. Thus, there are often cases when former civil servants believe that if the punishment imposed on them does not make it objectively impossible to remain in the civil service, their dismissal will not be legal.

S. filed a lawsuit against the Buryat Customs of the Siberian Customs Administration of the Federal Customs Service (hereinafter referred to as the Buryat Customs) to recognize the dismissal from the state civil service as illegal, reinstatement at work, recovery from the defendant of illegally withheld funds, compensation for moral damages and legal costs.

S. worked at the Buryat customs. She was sentenced under Part 1 of Art. 293 of the Criminal Code of the Russian Federation in the form of a fine, after which she was dismissed under clause 13, part 1 of Art. 33 of the Civil Service Law. Challenging the legality of her dismissal, she, among other things, indicated that the punishment in the form of a fine does not prevent her from performing her duties in the civil service position, since she was not sentenced to deprivation of the right to hold certain positions.

The Oktyabrsky District Court of Ulan-Ude, in its decision dated 02/04/2011 No. 33-1138, completely refused to satisfy her claims.

In refusing to satisfy S.'s demands, the district court proceeded from the fact that a person who has a criminal record that has not been expunged and has not been expunged in accordance with the procedure established by law cannot be in the civil service.

The Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Buryatia, by cassation ruling dated 04/06/2011 No. 33-1138, left the decision of the Oktyabrsky District Court of Ulan-Ude dated 02/04/2011 unchanged, and the cassation appeal was not satisfied.

In another similar case, the Judicial Collegium for Civil Cases of the Krasnoyarsk Regional Court, in its cassation ruling dated October 10, 2011 No. 33-9748, also indicated: “The fact that the plaintiff was not assigned a penalty by a court verdict, excluding the possibility of performing official duties in a government position civil service, is not a basis for declaring dismissal illegal, since by virtue of clause 2, part 1 of art. 16 of the Law on Civil Service, a service contract with a state civil servant may be terminated due to the presence of a criminal record that has not been expunged and expunged in accordance with the established procedure.”

You can also often find examples of former civil servants challenging the legality of their dismissal while on vacation or during a period of temporary disability.

The Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Buryatia issued a cassation ruling on March 23, 2011 in case No. 33-951, in which it confirmed the legality of the dismissal from the civil service of B., convicted under Part 1 of Art. 293 of the Criminal Code of the Russian Federation. B. was dismissed from her position<...>department of special customs procedures of the customs post of the Kyakhta international checkpoint of the Buryat customs under clause 13, part 1, art. 33 with reference to clause 2, part 1, art. 16 of the Civil Service Law.

Challenging the legality of her dismissal, B., in particular, pointed out that “due to the guarantees specified in the Labor Code of the Russian Federation, she, while on maternity leave, is raising young children alone, one of whom is disabled, could not be dismissed with work. And since the dismissal was initiated by the employer, she was not subject to dismissal while she was on vacation due to a direct prohibition established by law.” In addition, in relation to her, in her opinion, the norm contained in Part 3 of Art. 37 of the Civil Service Law, according to which a civil servant could not be released from his position and dismissed from the civil service during a period of temporary incapacity.

The panel of judges, however, did not agree with both of these arguments, pointing out that they are fair only in cases where dismissal from the civil service is carried out on the initiative of a representative of the employer. Failure to comply with the restrictions and failure to fulfill the obligations established by the Civil Service Law (Clause 13, Part 1, Article 33) is an independent requirement for dismissal and termination of a contract and does not apply to the grounds for dismissal or termination of a contract on the initiative of the employer’s representative (Clause 4, Part 1 Article 33 of the Law).

Also in judicial practice, there are cases when former civil servants challenge the legality of their dismissal from service in situations where a conviction was made against them, but for some reason they were released from criminal punishment.

Attention! Controversial decision

Of interest is the decision of the Cherkessk City Court of the Karachay-Cherkess Republic dated March 10, 2011.

B. filed a lawsuit against the Federal Bailiff Service of the Karachay-Cherkess Republic for recognition of order No. 21 of 01/27/2011 as illegal, reinstatement at work and payment for forced absence, citing the fact that by order No. 21 of 01/27/2011 his contract was terminated and he was released from the position being filled in the federal public service and dismissed in accordance with clause 1, part 2, art. 39 of the Civil Service Law.

By the verdict of the Cherkessk City Court dated August 3, 2010, he was found guilty of committing a crime under Part 1 of Art. 292 of the Criminal Code of the Russian Federation and he was sentenced to a fine. By cassation ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Karachay-Cherkess Republic dated November 2, 2011, B. was released from the punishment imposed by the verdict of the Cherkessk City Court dated August 3, 2010 due to the expiration of the statute of limitations for criminal prosecution.

In this regard, the plaintiff considered the order of dismissal to be illegal and unfounded, since the sentence of 08/03/2010 did not enter into legal force and he was released from punishment.

On March 10, 2011, the Cherkessk City Court of the Karachay-Cherkess Republic decided to refuse to satisfy B.’s claims in full. In particular, stating that “according to clause 2 of part 1 of Art. 16 of the Law on Civil Service, a civil servant cannot be in the civil service if he is sentenced to a punishment that precludes the possibility of performing official duties in a position of civil service (civil service), by a court verdict that has entered into legal force,” the court unexpectedly concluded that “ This basis allows you to dismiss a civil servant not only in case of conviction to a punishment that excludes the possibility of him performing official duties in a position of the state civil service, but also to a punishment that does not exclude the possibility of filling a civil service position in connection with a conviction in connection with the ban on filling such a position. job title".

This interpretation of the above norm can hardly even be called broad, since it completely changes its meaning.

Clause 2, Part 1, Art. 16 of the Law on Civil Service, indeed, as we noted above, requires the termination of official relations not only with those employees who are sentenced to a punishment that precludes the possibility of performing official duties in the position of the state civil service, but also with those who are sentenced to other punishments, due to which they had a criminal record. But in the case under consideration, by virtue of Part 2 of Art. 86 of the Criminal Code of the Russian Federation, B. did not have a criminal record.

The court, however, was not at all embarrassed by the latter fact, since, in its opinion, “B.’s dismissal is not a consequence of his criminal record, but a consequence of a conviction against him, which has not been overturned at the moment.”

Against the backdrop of such “judicial discoveries”, in general, it is no longer surprising that the judge simply “did not notice” that B., who was given a criminal penalty in the form of a fine, was not even dismissed under clause 13 of Part 1 of Art. . 33 of the Law on Civil Service, and according to clause 1, part 2, art. 39 - condemnation of a civil servant to a punishment that excludes the possibility of filling a civil service position, by a court verdict that has entered into legal force.

It is also hardly surprising that this decision was upheld by the cassation ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Karachay-Cherkess Republic dated April 13, 2011 No. 33-217/11. It is characteristic that in this determination the Judicial Panel did not particularly bother itself with searching for justifications for the legality of B.’s dismissal under clause 1 of part 2 of art. 39 of the Law on Civil Service, but only noted that since “civil service is a specific type of labor activity” and “civil servants enjoy, like other workers, political rights, but under one condition: compliance with the obligations arising from their status and character functions they perform”, “the plaintiff’s arguments that the verdict of the Cherkessk City Court of the Karachay-Cherkess Republic, by which he was convicted under Part 1 of Art. 292 of the Criminal Code of the Russian Federation, did not enter into legal force, he was released from the imposed punishment and in accordance with Art. 86 of the Criminal Code of the Russian Federation is considered unconvicted, the Judicial Collegium considers it insolvent.”

Finally, we note that even in situations where a civil servant has already been convicted, dismissed from the civil service and is serving a prison sentence, some legal disputes still arise.

R. filed a lawsuit against the Federal Bailiff Service in the Ulyanovsk region for the recovery of wages, material damage and moral damage. In support of the stated demands, the plaintiff indicated that on April 2, 2009, he was detained by officers of the Investigative Committee at the Prosecutor's Office of the Ulyanovsk Region on suspicion of committing a crime under Part 4 of Art. 290 of the Criminal Code of the Russian Federation at the workplace and placed in the temporary detention center of the Ulyanovsk region.

On April 3, 2009, the plaintiff was charged and arrested by the Zasviyazhsky District Court of Ulyanovsk for committing the above crime. On March 10, 2010, by a verdict of the Zasviyazhsky Court of Ulyanovsk, the plaintiff was found guilty of committing crimes under Part 3 of Art. 30, part 2 art. 291, part 3 art. 30, part 3 art. 159 and sentenced to six years in prison to be served in a general regime colony. During the preliminary investigation from 04/02/2009 until the verdict came into force on 04/21/2010, the plaintiff was kept in custody in pre-trial detention center No. 1 in Ulyanovsk, being an active employee of the Federal Bailiff Service for the Ulyanovsk region. The plaintiff points out that his location and reasons for absenteeism were known to the employer and on April 21, 2010, by order, he was dismissed from service in accordance with clause 1, part 2, art. 39 of the Civil Service Law. While the plaintiff was under investigation and after his dismissal, the plaintiff was not paid wages, although the contract was terminated only on 04/21/2010 upon the entry into force of the verdict. According to the Labor Code of the Russian Federation, since the plaintiff did not fulfill his labor obligations for reasons beyond the control of the plaintiff and the employer, in the plaintiff’s opinion, he should retain at least 2/3 of the salary scale (official salary), calculated in proportion to the time actually worked, but this was not done. The plaintiff states in the statement of claim that, in violation of Art. 140 of the Labor Code of the Russian Federation, he was not paid the full amount upon dismissal, in violation of Art. 84 of the Labor Code of the Russian Federation, he was not familiarized with the dismissal order against signature and was not notified in any way at all, although his location was known to the employer.

As the court established in this case, R. was relieved of his position in the federal public civil service and dismissed

04/21/2010 from the federal public service in connection with the conviction of a civil servant to punishment, excluding the possibility of filling a civil service position, by a court verdict that entered into legal force (clause 1, part 2, article 39 of the Civil Service Law).

Since the plaintiff R. is serving a sentence and is in prison, it was not possible for the defendant to familiarize him with the dismissal order, nor to hand him a work book, so the notice of dismissal was sent to the plaintiff at the address specified in the service contract, as can be seen from the presented defendant copies. In accordance with Art. 841 of the Labor Code of the Russian Federation, in the case when the order to terminate the employment contract cannot be brought to the attention of the employee, a corresponding entry is made on it, which was done in this case by the employer.

During the consideration of the case, it was established that the work book was received from the defendant by the representative of the plaintiff - his mother R.O.

As for R.’s demand to pay him a salary in the amount of 2/3 of the official salary scale for the period of his being under investigation, when the service contract with him had not yet been terminated, the court refused to satisfy them due to the fact that “the plaintiff R., through his own fault, did not fulfill his job duties, since he committed a crime, was taken into custody and was subsequently