The paradox of criminal procedural provision of notarial secrecy and its overcoming

Lagodina Elena Ivanovna ORCID: 0009-0008-5092-7572 PhD in Law Associate Professor; Department of Criminal Procedure; Kuban State University 350000, Russia, Krasnodar Territory, Krasnodar, Rashpilevskaya str., 43 lagodinanotarius@mail.ru

Introduction

In accordance with the provisions of Article 23 of the Constitution of the Russian Federation (hereinafter – the Constitution of the Russian Federation), every citizen has the right to privacy, personal and family secrets, protection of his honor and good name, as well as the secrecy of correspondence, telephone conversations, postal, telegraphic and other communications. Restriction of these rights is allowed only on the basis of a court decision and only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state (Part 3 of Article 55 of the Constitution of the Russian Federation).

In the theory of criminal procedure, among the means providing the necessary level of protection of the rights, freedoms and legitimate interests of participants, secrecy is widely studied as a special legal regime for handling information related to a person and a citizen, bodies and organizations of various fields of activity and organizational and legal forms ^[1]. Attorney-client privilege is being actively investigated ^{[2, 3]}, including in conjunction with other legal regimes that ensure the safety of data from widespread dissemination ^{[4, 5, 6]}.

The activity of a notary is interpreted as having public legal significance ^{[7, 8]}. At the same time, however, the legislator does not take any significant steps to ensure notarial secrecy in criminal proceedings ^{[9, p. 14]}, which should be recognized as a significant omission and the main reason for the risks of violating not only the legitimate interests of participants in criminal proceedings of a property nature, but also the rights arising from family, labor and other legal relations. These risks are also caused by the unresolved issues in domestic criminal proceedings regarding the use of documents containing information classified as a notarial secret and inadvertently disclosed in evidence. Some works by foreign authors are also devoted to this topic ^[10].

The purpose of this article is to appeal to the scientific community with the formulation of a long-overdue problem about the development of means of criminal procedural provision of notarial secrecy, as an independent direction of scientific research and a vector of optimization of domestic criminal procedural legislation.

The revealed contradictions in the approaches of the legislator to ensuring the rights and legitimate interests of participants in criminal proceedings (on the one hand, strengthening procedural guarantees, including in terms of ensuring property interests (for example, entrepreneurs), and on the other – the lack of means to guarantee the safety of notarial secrecy) allow us to assess the steps taken as declarative, not having a fully thought-out schemes that do not contain reliable algorithms for criminal procedural activities to fulfill the purpose of criminal proceedings in this part.

The formed paradox in the criminal procedure regulation allowed to put forward the author's proposals of a theoretical and legislative nature: to clarify the idea of the essence of notarial secrecy as the only one of all legal secrecy regimes that is not monotonous, but represents a multi-secret, covering numerous areas of the personal life of the principals, as well as to justify the need and expediency of establishing procedural means of protecting notarial secrecy.

1. Notarial secrecy is a professional secret:

problems of theoretical approaches

Constitutional provisions contribute to the creation of a special legal regime for the circulation of information related to these social and legal values. This regime is called "legally protected secret". "Secrecy," writes A. E. Maslov, "presupposes not just information, but its definite state, otherwise ‒ the legal regime. By protecting certain information, we, first of all, protect objectively existing interests. There is no mystery outside of these interests. The protected information is valuable because it is unknown to third parties" ^{[11, p. 208]}.

According to I. O. Petrukhin, there are "about 40 types of information that is referred to as a "secret" in Russian legislation" ^{[12, p. 8]}.

The definition of "mystery" is not fixed in domestic legislation, which gives rise to a difference in approaches to its definition, taking into account the diversity of linguistic, philosophical, scientific and legal aspects ^{[13, p. 29]}, but this is a separate research topic. In this article, we consider it necessary to clarify that there is a legal definition of a legally protected state secret as "information protected by the state, the dissemination of which may harm the security of the Russian Federation", set out in Article 2 of the Law of the Russian Federation dated July 21, 1993 No. 5485-1 (ed. from August 4, 2023) "On State Secrets", and as well as other types of secrets, for example, a commercial secret, which is "a confidentiality regime of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position on the market of goods, works, services or receive other commercial benefits," which is provided for in paragraph 1 of Part 1 of Article 3 of the Federal Law on July 29, 2004 No. 98-FZ (as amended on July 14, 2022) "On Trade Secrets".

We particularly note the concept of professional secrecy, under which certain categories of information are protected by persons who are obliged to keep it from being transferred to third parties by virtue of performing certain professional duties.

The legal basis for the allocation of the category of "professional secrecy" is Part 5 of Article 9 of the Federal Law "On Information, Information Technology and Information Protection" (hereinafter – the Law on Information). There are numerous examples of the use of the term "professional secrecy" in law enforcement practice. For example: "By virtue of paragraph 8 of part 3 of Article 9 of the Law on Information Protection, information received by citizens (individuals) in the performance of their professional duties or organizations in the performance of certain types of activities (professional secrecy) is subject to protection in cases where these persons are required by federal laws to respect the confidentiality of such information" (decision Federal Antimonopoly Service of Russia dated March 29, 2023 in case No. 28/06/105-620/2023).

I. V. Smolkova in her research emphasizes: if we approach the institute of professional secrecy from the most general positions, then belonging to a particular profession, the exercise of certain professional functions is decisive in it ^{[14, p. 58]}.

V. N. Lopatin, among the mandatory signs of professional secrecy, indicates not only the profession by virtue of which confidential information is entrusted or becomes known to a person, but also the voluntary provision of information by its owner, as a rule, affecting his private life, and the obligation of the person to whom, by virtue of his profession, information is entrusted, to ensure its safety under pain of liability in accordance with current legislation ^[15].

Professional secrecy is very widespread. The obligation to maintain professional secrecy falls within the competence of officials of government bodies (legislative, executive, judicial), law enforcement agencies, journalists, doctors, employees of commercial and banking organizations. The clergy are obliged to keep the secret of confession. Professions designed to ensure that citizens and other persons (for example, legal entities) receive qualified legal assistance occupy a worthy place in this series. Thus, a lawyer is obliged to keep secret the information received from the principal, and a notary is obliged to keep a notarial secret.

We believe that along with professional secrecy, it is necessary to allocate official secrecy, i.e. the obligation of a person not to disclose information by virtue of his position. There are the following reasons for this conclusion. According to their position, certain categories of employees of organizations and institutions who have the right to access information may be required to keep information secret, the dissemination of which, without appropriate control, may harm the protected interests of the state, the collective, the enterprise, the organization (employees of audit firms, design bureaus, financial departments of commercial organizations, etc.).

Let us illustrate this by the example of the decree of the Government of the Russian Federation dated November 26, 2021 No. 2052 "On Approval of the Rules for Handling information constituting official secrets in the field of defense", which determines that information generated during the implementation of measures in the field of defense that does not constitute state secrets and is not publicly available is classified as official secrets.

It should be borne in mind that the legal mechanism for determining official secrets and working with it is insufficiently prescribed in the current legislation in the absence of a unified classification of official secrets.

The distinction between professional and official secrets allows you to more accurately form an understanding of the content of the duty that is assigned to the bearer of the secret and allows you to determine the necessary conditions for its fulfillment. In most cases, these conditions are created by the legislator for the bearers of the secret. At the same time, for holders of professional and official secrets, the conditions of preservation should obviously be different.

In particular, for an active notary, there is an obligation to keep secret the information received within the framework of professional activity, and for employees of the notary control – the same obligation, but already within the framework of official secrecy by virtue of their position. Differences in the conditions of performance of the assigned duty may be significant due to the fact that professional secrecy has a legislative basis, and official secrecy has a subordinate nature.

Our scientific interest is aimed at obtaining and deepening knowledge about notarial secrecy (professional and official) and the means of ensuring it in the field of criminal proceedings.

Here, D. V. Sannikov's position on the essence of notarial secrecy deserves attention, who believes that the transfer of information about a citizen's private life to a notary within the framework of his professional activity does not mean its (secret) "disclosure", which is predetermined by the "special public legal status of a notary, his law enforcement and human rights mission." At the same time, notarial secrecy "is of crucial importance for the protection of a citizen's private life" ^{[16, p. 35]}.

We will provide information from two comments on the law on information to clarify the characteristics of professional secrecy. In the first case, the authors note such a sign of professional secrecy as the obligation to keep confidential information obtained in the performance of professional duties, when it should be assigned by law to the relevant citizen. At the same time, information constituting a professional secret may be provided to third parties in accordance with federal laws and (or) by a court decision.

In the second case, a list of possible types of professional secrecy is given and it is noted that professional secrecy must be specified in the law, and there are more than 50 such types of secrecy ^[17].

The governing bodies of the Federal Notary Chamber (hereinafter – FNP) did not stay away from discussing the problem of professional secrecy of the notary. In the FNP letter dated March 11, 2016 no. 749/03-16-3 "On the amount of information that a notary or the notary chamber of a constituent entity of the Russian Federation has the right to inform third parties within the framework of an inheritance case" it is noted that the opening of an inheritance is not a notarial act and "does not relate to information constituting a notarial secret, therefore the notary has the right to inform to a third party about the fact of opening an inheritance case."

At the same time, not all information related to the hereditary process is open. According to the Civil Code of the Russian Federation, information constituting the secret of a will includes: the contents of a will, making a will, changing a will, canceling a will ^[18].

The authors of the monographic work devoted to the issues of private law regulation of public relations believe that the circle of persons specified in the legislation, on whom the obligation to preserve the secrecy of the will is imposed by virtue of their participation in the specified notarial action ^{[19, pp. 361, 368]}.

2. Criminal law and criminal procedural means of ensuring

notarial secrecy: problems of definition and application

There are many ways to legally ensure the safety of restricted access information. One of them is the norms of criminal law, which enshrine responsibility for violations of the secrecy regime for the following categories of information:

– personal secret – art . 137, 138, 140, 142, 146, 155 THE Criminal Code OF the Russian Federation;

– commercial, tax and banking secrecy – Article 183 of the Criminal Code of the Russian Federation;

– state secret – Articles 283, 283.1 of the Criminal Code of the Russian Federation;

– the secret of the preliminary investigation – Article 310 of the Criminal Code of the Russian Federation;

– information on security measures in relation to the judge and participants in the criminal process – Articles 311, 320 of the Criminal Code of the Russian Federation.

It should be noted that this list does not include attorney-client privilege, which is protected and fully supported by the legislator. An equally remarkable circumstance is the absence of notarial secrecy in this list.

At the same time, if in relation to attorney-client privilege we can talk about the absence of even prerequisites for its criminal protection, then it seems to us that notarial secrecy is still present in this list in one way or another. The following circumstance leads to this conclusion.

The most numerous are the provisions of the Criminal Code of the Russian Federation, which establish responsibility for the disclosure of data covered by the legal regime "personal secret". In this circumstance, there is a general tendency to strengthen guarantees of the rights and legitimate interests of the individual, in line with which is the purpose of criminal proceedings, enshrined in Article 6 of the Code of Criminal Procedure of the Russian Federation.

At the same time, it is notarial professional activity that is most closely related to the rights of the individual. We consider it possible to agree with A. N. Levushkin that "notarial activity is closely related to family and hereditary legal relations" ^{[20, p. 19]}. In another of his works, A. N. Levushkin clarifies that "currently there is a progressive tendency to expand the scope of the notary's office, this direction of development is aimed at ensuring a stable, conflict-free and legitimate nature of civil, hereditary and family relations" ^{[21, p. 18]}.

The professional participation of a notary in these legal relations provides him with almost unlimited access to personal information. This circumstance allows us to draw the following conclusion: personal secrecy, which is protected by criminal law, is also ensured by influencing persons who may pursue the goal of forcing a notary to disclose the personal secrets of their client. At the same time, the wording of definitions of criminal law norms does not make it possible to directly confirm this thesis, pointing, for example, in Article 155 of the Criminal Code of the Russian Federation to the disclosure of data on the secret of adoption by a person obliged to keep a secret by virtue of official or professional position. The direct definition of the signs of the subject of the crime excludes the criminal liability of other categories of persons.

Accordingly, despite the fact that personal rights and legitimate interests are a specially protected object, a notarial secret that has the most direct relation to it (the specified object) does not directly receive criminal legal protection.

In criminal procedure law, a number of procedural institutions are also aimed at ensuring personal secrecy. The main ones, in our opinion, are judicial permission for the production of procedural actions aimed at seizing or using another way to gain access to information related to a person, her rights and legitimate interests. Thus, the right to inviolability of a person, her freedom, home, correspondence may be restricted only by a court decision (with the exception of cases specifically stipulated in the law, also accompanied by subsequent judicial control).

The text of the Code of Criminal Procedure of the Russian Federation does not mark a notarial secret as an object subject to protection or protection. There are no funds aimed at ensuring it. A notary is not recognized as a special entity whose professional activity is important for ensuring personal rights and legitimate interests. And even in comparison with lawyers who act in criminal proceedings in the status of a defender or representative, notaries clearly "lose" in the level of their legal protection. For example, a notary, as a witness, is obliged to testify, and in case of refusal, he may be prosecuted under Article 308 of the Criminal Code of the Russian Federation.

In our opinion, there is a certain paradox in this situation, the essence of which can be formulated as follows:

– the highest value is the rights, freedoms and legitimate interests of the individual, which is confirmed by the trends in the development of legal regulation, including criminal procedural relations;

– notarial activity leads to a deep "immersion" in personal information, and illegal influence on the notary (in various forms, including the seizure of notarial documents) makes it possible to cause fundamental harm to personal rights and legitimate interests;

– notarial secrecy, as a way of protecting against disclosure of personal information, access to which is obtained within the framework of professional notarial activity, is not protected by means of criminal or criminal procedural law.

O. S. Morozova suggests expanding the list of confidential information: "It is necessary to add journalistic secrecy to this list. Some of this information is protected by the CPC of the Russian Federation (for example, attorney's, judicial and tax secrets, the secret of confession) and other federal laws, but it seems that there remains a dilemma about the need to expand the list set out in Part 3 of Article 56 of the CPC of the Russian Federation" ^[22].

We can agree that journalistic secrecy acquires significant social, socio-political significance and the bearers of relevant information need an increased level of protection of their rights and legitimate (let's emphasize – professional) interests. However, if journalistic secrecy is in the process of formation, then notarial secrecy has a centuries–old history and, as we saw earlier, affects the fundamental foundations of the modern Russian state - the rights of the individual. We believe that in this perspective, notarial secrecy and the same journalistic secret look incomparable, and a notary, as a bearer of personal secrets, needs his professional rights and legitimate interests to have decent legal protection, including appropriate criminal procedural means.

3. Ways to overcome the current paradoxical situation

in the field of legislative regulation of ensuring notarial secrecy

in criminal proceedings

Firstly, there is an urgent need to conduct a separate cross-sectoral study on the issues of structuring and substantive content of notarial secrecy. The problems of ensuring it, including in criminal proceedings, are caused not only by underestimating the importance of a notary in the field of criminal proceedings, but also by the lack of objective knowledge on these issues.

Our vision of the structure of notarial secrecy is to recognize it as a complex, heterogeneous legal phenomenon. So, in comparison with the notarial secret, the medical secret clearly has differences related to the content of the information under the relevant legal regime. Medical secrecy concerns exclusively the physical and mental state of a person, and notarial secrecy may concern not only medical secrecy (the reasons for the client's incapacity may become known), but also his property, family, psychological, financial, etc. position. This fact gives reason to assert that the notary secret is the only one of all legal secrecy regimes that is not monotonous, but is a multi–secret, covering numerous areas of the personal life of the principals.

Secondly, there is no doubt that the procedural means mentioned in the literature to ensure secrets protected by federal law in criminal proceedings (non-disclosure agreement, the right to file petitions and complaints, means of ensuring the safety of participants) fully extend to notarial secrecy.

At the same time, the level of consolidation of certain means of ensuring notarial secrecy does not correspond to criminal procedural relations. In accordance with Part 3 of Article 16 of the Fundamentals of the Legislation of the Russian Federation on Notaries, the court may release a notary from the obligation to preserve secrecy if a criminal case has been initiated against the notary in connection with the commission of a notarial act or when there is a requirement to issue information containing a notarial secret.

We believe that such a court decision can be made on the basis of the declared petition of a notary, for whom this right serves as an additional means of fulfilling the task assigned to him related to participation in criminal proceedings. At the same time, a situation is hardly acceptable when this right is not reproduced in the norms of criminal procedure law.

It will also be appropriate to compare the powers of the notary and the defender in terms of appeal. If the defender, according to paragraph 10 of part 1 of Article 53 of the Code of Criminal Procedure of the Russian Federation, has the right to bring complaints against the actions (inaction) and decisions of the inquirer, the head of the department of inquiry, the head of the body of inquiry, the body of inquiry, the investigator, the prosecutor, the court and participate in their consideration by the court, then in relation to the notary there is no such right in the Code of Criminal Procedure. The elimination of these and other imbalances in the regulation of the procedural status of a notary will inevitably and beneficially affect the situation related to ensuring not only notarial, but also personal secrets of a citizen, which is a priority in the regulation of modern legal relations.

4. Main conclusions

Notarial secrecy ensures the safety of personal information in an inviolable form, protecting the rights, freedoms and legitimate interests of citizens and legal entities, thereby ensuring the stability of legal relations, citizens' confidence in their security.

Criminal proceedings are inherently a coercive activity of the state, which, on the one hand, is aimed at achieving publicly significant goals, and on the other, is designed to guarantee the protection of the rights of citizens and other persons involved in its sphere. The legal position of a notary in a criminal case is characterized by the inconsistency of the legislator's approach to ensuring his rights, establishing conditions for the implementation of the notary's obligation to maintain professional secrecy, which cannot but cause a desire to resolve the paradoxes of such regulation.

The results of notarial activity must have adequate means of criminal procedural protection that correspond to their social and legal significance. We believe that the comments and suggestions made will help to find optimal ways to improve the criminal procedural provision of notarial secrecy.