Art. 155 of the Criminal Code of the Russian Federation in the current edition and comments to it

Qualifying features

Based on the text of Article 155 of the Criminal Code of the Russian Federation, disclosure of the secret of adoption is any information regarding the fact that certain citizens are not the biological parents of the child, contrary to the will of these citizens.

The main sign of an offense is the disclosure of the fact of adoption to people who are not obliged to keep it secret.

The law motivates the criminal prosecution of persons who revealed this secret as follows: the news can be traumatic for all family members, turn into a psychological shock for the child and prevent the formation of a harmonious microclimate in the social unit.

What is it for

It is important to understand that disclosing the secret of adoption is fraught with the development of a negative atmosphere in the family, which can lead to divorce of spouses, cancellation of adoption or unlawful actions on the part of members of the family union. . Contrary to the Conventions on the Rights of Children, which opposes concealing the fact of adoption, as this is contrary to human rights

Contrary to the Conventions on the Rights of Children, which opposes concealing the fact of adoption, as this is contrary to human rights.

The secrecy of adoption can entail moral and legal problems, therefore in Russia a decision has been made on its non-disclosure in order to neutralize the threat of these problems arising.

The following procedures are also kept secret:

protection from attempts to take the baby away from the foster family by his blood relatives;
ensuring a comfortable climate in the family, relationships based on mutual understanding and love;
protection from mental and moral ill-health of children in foster families, since often the news of the absence of family ties among family members can cause irreparable damage to the mental health of the child;
protection from blackmail from third parties who exert pressure under the pretext of disclosing secrets;
responsibility for disclosing the secret of adoption provides protection from the provision of information about the adoptive parents to the child’s biological parents, who “in time” came to their senses about their involvement in raising the child.

Modern trends in glasnost give the right to assume that, following the example of the West, the secrecy of adoption and the threat of its disclosure will soon be abolished in Russia. This measure will eliminate all obstacles to finding blood relatives if necessary.

Corpus delicti

The crime takes place from the moment the actions prescribed in the text of the law are committed, namely the disclosure of information about adoption. Who can be held criminally liable for disclosing secrets?

employees of the state apparatus for whom adoption is classified as professional secrets:

the judge who made the decision on adoption;
specialists from guardianship and trusteeship authorities;
employees of the juvenile affairs department; teachers, etc.

A complete list of persons who are obliged to store information about adoption as a matter of professional obligation can be found in Part 1 of Article 139 of the RF IC.

In the first case, it is easier to determine the possibility of a particular person being the subject of a violation of the law: if his job description states the obligation to maintain the secrecy of adoption, he is responsible for violating it.

When such persons are not civil servants, the existence of a crime is determined only by proof of the fact of base or selfish motives regarding the adopted child or his parents. In order for the subject to bear criminal liability, they must be proven in court.

deliberate actions of the violator: he realizes that the adoptive parents do not want to divulge the secret and his actions contradict their goals.

The object of the crime is the common interests of all family members . The fact of secrecy is protected by law from the moment the court decision on adoption is made. Until this time, information about the intentions of certain persons to accept into a family a child whose biological parents they are not is not within the scope of the criminal code.

According to the same article. 155 of the Criminal Code of the Russian Federation, all participants in the trial are informed about the need to keep information about adoption secret and, if it is disclosed, may be held accountable.

Commentary on Article 155 of the Criminal Code of the Russian Federation

1. According to Art. 139 of the RF IC, the secret of the adoption of a child is protected by law. The court in accordance with Art. 273 of the Code of Civil Procedure of the Russian Federation considers all cases of this category in a closed court hearing, including the announcement of the decision. For the same purpose, persons participating in the consideration of the case must be warned about the need to keep confidential information about adoption that has become known to them, as well as about the possibility of bringing to criminal liability for disclosing the secret of adoption against the will of the adoptive parent in the cases provided for in the commented article, which is reflected in the protocol of the court session and is confirmed by the signatures of these persons (clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of April 20, 2006 No. 8 “On the application by courts of legislation when considering cases of adoption of children” <1>).

——————————— <1> BVS of the Russian Federation. 2006. N 6.

How to prove and refute the disclosure of the secret of adoption?

A crime is considered committed from the moment the information is disclosed to the child himself or to other people. In practice, proving the fact of an offense of this kind is a rather slippery procedure, especially in cases where the subject is guided by base thoughts.

In order to identify disclosure of a secret as an offense, the person who committed it must be identified. Evidence can be the testimony of witnesses who will confirm the disclosure of secrets by the subject, or documentary evidence (letters, recordings of telephone conversations, etc.). Witnesses can be either people from the family environment or the child himself.

A crime will not be considered committed if information about the adoption was sent to authorities whose employees are themselves obliged to keep the adoption secret and are authorized to receive information of this kind.

We are talking about the same list of positions from Part 1 of Article 139 of the RF IC.

For example, if a teacher wrote an official letter to the guardianship and trusteeship authorities, the text of which mentions the adoption of a child from his class, he cannot be considered the subject of a crime, since the information did not come out outside the circle of persons obliged to keep this fact secret.

The secret of child adoption and its provision

The secret of adoption and its provision lies with many people. Among them:

The judges who made the adoption order;
All officials who carried out the fact of state registration;
Other persons who in one way or another relate to the adoption process: • Employees of guardianship and trusteeship authorities; • Medical workers; • Employees of children's organizations where adopted children were located; • Relatives, friends and acquaintances of the family involved in the adoption.

According to the rules of adoption, civil registry officials, without the consent of the adoptive parents, do not have the right to provide any information or issue documents that disclose information about the adoptive parents and the child.

If the court finds the reasons valid, changes in the date of birth can be made to the birth certificate of a child who is one year old or more. According to the same provision, the date of registration of the birth certificate may also change.

The secrecy of the adoption of a child and its provision are provided for by the norms of the Family Code, which are designed to prevent the dissemination of information about the fact of adoption. Thus, women who have adopted a child are granted maternity leave (instead of adoption leave) from the date of adoption and for 70 calendar days, and when adopting two or more children - 110 calendar days.

Prompt assistance from an adoption specialist

What punishment and responsibility are provided?

Art. 155 of the Criminal Code of the Russian Federation regulates the following preventive measures for this offense:

imprisonment for up to 4 months. ;
correctional labor for up to 12 months. ;
imposition of a fine in the amount of up to 80 thousand rubles.

SOME ISSUES OF ILLEGAL DISCLOSURE OF THE SECRET OF ADOPTION

According to Article 124 of the Family Code of the Russian Federation22, adoption (is a priority form of placement for children left without parental care, adoption) is applied to minor children and exclusively in their interests. At the same time, in accordance with Article 155 of the Criminal Code of the Russian Federation23 disclosure of secrets adoption against the will of the adoptive parent is a criminal offense.At the same time, certain issues of liability for disclosing the secret of adoption in domestic criminal law are not fully studied due to the presence of debatable provisions both in the criminal legal doctrine and emerging disagreements when qualifying this norm in practice.

The object of violation of the secrecy of adoption is, firstly, the legally protected interests of the family and the normal formation and development of the child’s personality, and secondly, the right to personal independence, which includes the right to family secrets, which is enshrined in the Constitution of the Russian Federation.

The victims of this crime in accordance with Art. 155 of the Criminal Code are:

1) adopted children;

2) adoptive parents (adopters) who submitted an application (adoption) to the education authority;

3) persons recognized in the manner prescribed by law as adoptive parents, i.e. recognized by the law as the parents of a particular child.

The objective side of this crime is the disclosure of the secret of adoption against the will of the adoptive parent. Disclosure means the dissemination of any information about the fact of adoption, from which it is clear that the adoptive parents are not the parents of the adopted child. This may consist of informing anyone: relatives, acquaintances, the adopted child himself, or strangers about the real circumstances of the appearance of a particular child with specific parents. In form, such a message can be oral or written, including using any means of communication and information. The will of the adoptive parent is interpreted as a joint desire, desire, demand of the spouses to keep the circumstances of the birth of a child in their family secret. Therefore, if one of the spouses announced the secret of adoption of a child without the consent or permission of the other spouse, such actions are criminally punishable.

22 Family Code of the Russian Federation dated December 29, 2005 No. 223-FZ (as amended on November 25, 2013) [electronic resource] – Access from the reference legal system “ConsultantPlus”.

23 Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ (as amended on July 21, 2014) [electronic resource] – Access from the reference legal system “ConsultantPlus”.

The subjective side of the crime is direct intent. The culprit is aware of the public danger of disclosing the secret of adoption and wants to divulge this secret. The motive is selfish or other base motives. Self-interest is the urge to acquire material wealth by any illegal means. Other base motives may be revenge, envy, or causing moral suffering to a minor. The motive for the presence of corpus delicti under Art. 155 of the Criminal Code, is necessary when the disclosure is carried out by a person who is not obliged to keep the fact of adoption as an official or professional secret.

The subject of the crime is:

1) persons obliged to keep the fact of adoption as an official or professional secret;

2) other persons to whom this information became known.

An analysis of court verdicts in this category of criminal cases allows us to come to the conclusion that the crime is most often committed due to disclosures on everyday grounds. So, according to the Decision of the Judicial District No. 1 of the city of Torzhok, Tver Region, dated 05/10/2012 in case 34-413324, the adoptive parents (adoptive parents) were in the process of divorce and the accused, in a state of alcoholic intoxication, in order to make the adopted child morally ill, told about adoption. Often, when analyzing actions, they are committed on the basis of personal hostile relationships that have arisen. Thus, according to the Decision of the Moscow Regional Court of Moscow dated April 18, 2014 in case 22-231825, the accused learned that her husband had another woman, and who had an adopted son. The accused met the boy near the school and told him about the adoption.

It must be proven that it was precisely, and not another person, who told the secret of adoption. All evidence must be procedurally recorded. So, in the Decision of the Moscow Regional Court of the Moscow Region dated April 13, 2011 in case 2569-1826, a quarrel on domestic grounds occurred, the accused spoke about adoption, but the victim could not prove this, since there was no one else in the apartment except them and she also did not talk about this to no one for a year.

It should also be pointed out that the disposition of the norm of Article 155 of the Criminal Code is imperfect. It is necessary to support the position of A.A. Samatova that the disposition of Article 155 of the Criminal Code does not take into account the fact that the “secret of disclosure of adoption” can be revealed by the adoptive parent himself. And this can also negatively affect the mental state of the adopted person.

In addition, after the death of the adoptive parent, it is possible to disclose the secret of adoption, even if the child’s close relatives or persons caring for him object to this, since no liability is provided for such actions. Therefore, it is necessary to amend the article that the adoptive parent, regardless of his will, also does not have the right to disclose the secret of adoption27.

Therefore, we can conclude that the crime is committed on domestic grounds. It is worth noting that in Article 155 of the Criminal Code of the Russian Federation there is a legislative gap in relation to the subject. At the same time, if a person wants to prove that this crime was committed by a specific subject, then he needs to contact a law enforcement agency as soon as possible with a statement and attach to it all kinds of video recordings, sound recordings, or witness statements about the commission of this act.

24 Decision of the Judicial District No. 1 of the city of Torzhok, Tver Region dated May 10, 2012 in case 34-4133 [electronic resource] – Access from the reference legal system “ConsultantPlus”

25 Decision of the Moscow Regional Court of Moscow dated April 18, 2014 in case 22-2318 [electronic resource] – Access from the reference legal system “ConsultantPlus”

26 Decision of the Moscow Regional Court of the Moscow Region dated April 13, 2011 in case 2569-18 [electronic resource] – Access from the reference legal system “ConsultantPlus”.

27 Samatova A.A. Current problems of criminal liability for crimes related to adoption // Criminal law and process. - 2010. - No. 1. - P. 35-42.

Bibliography

1 Family Code of the Russian Federation dated December 29, 2005 No. 223-FZ (as amended on November 25, 2013) [electronic resource] – Access from the reference legal system “ConsultantPlus”.

2 Criminal Code of the Russian Federation dated June 13, 1996 No. 63-FZ (as amended on July 21, 2014) [electronic resource] – Access from the reference legal system “ConsultantPlus”.

3 Decree of the Government of the Russian Federation dated March 29, 2000 No. 275 (as amended on February 10, 2014) “On approval of the rules for transferring children for adoption and monitoring the conditions of their life and upbringing in adoptive families on the territory of the Russian Federation and rules for registration consular offices of the Russian Federation of children who are citizens of the Russian Federation and adopted by foreign citizens and stateless persons" (ed. dated 02/10/2014) [electronic resource] - Access from the reference legal system "ConsultantPlus".

4 Decision of the Judicial District No. 1 of the city of Torzhok, Tver Region dated May 10, 2012 in case 34-4133 [electronic resource] – Access from the reference legal system “ConsultantPlus”.

5 Decision of the Moscow Regional Court of Moscow dated April 18, 2014 in case 22-2318 [electronic resource] – Access from the reference legal system “ConsultantPlus”.

6 Decision of the Moscow Regional Court of the Moscow Region dated April 13, 2011 in case 2569-18 [electronic resource] – Access from the reference legal system “ConsultantPlus”.

7 Samatova A.A. Current problems of criminal liability for crimes related to adoption // Criminal law and process. - 2010. - No. 1. - P. 35-42.