Removal from office. Suspension from work: at the request of bodies and officials Suspension from office for up to 5 years

Suspension is a temporary refusal to provide work under an employment contract. The key word is "temporarily". It is this condition that distinguishes suspension from dismissal.

The purpose of the procedure is to prevent the possible risks of the company that may arise in the further activities of the employee. The grounds for removal are listed in Article 76 of the Labor Code of the Russian Federation. The head of the organization cannot determine the reasons on his own and dismiss employees on their basis. All of them are specified in the law and regulations. During the period of suspension of employment, wages may not be paid.

Reasons for the removal of the chief accountant and director

In the Labor Code there are no reasons for the removal of the chief accountant and director. Only the general grounds for the suspension of cooperation are listed:

• Appearance at work in a state of intoxication various forms: narcotic or alcoholic. It is important to confirm the unacceptable state of the employee. For this, medical reports, testimonies, recordings from video cameras are used. An employer is not required to terminate an employee. He can also announce a reprimand, make an official remark. The highest measure of punishment is dismissal under the relevant article.
• The employee has not been certified in his specialty. That is, there is official confirmation that the employee does not correspond to the position held. Another possible measure under these circumstances is dismissal.
• Detection of contraindications regarding the position held during the medical examination. The grounds for the suspension of employment must be confirmed by a medical certificate. Suspension is carried out until the time of elimination of the found contraindications. The period of suspension of cooperation may be determined by the employer independently. If it is less than 4 months, the employee should be given another position, to which there are no contraindications.
• Suspension of a special right required for execution official functions for a period not exceeding two months. Such rights include, for example, a license to operate a vehicle, the right to use weapons.
• Requirements officials subject to laws and regulations. For example, the judicial authorities, the labor inspectorate can demand the removal of an employee.
• Quarantine.

IMPORTANT! The period of suspension will be included in the length of service, subject to several conditions: the employee was subsequently reinstated in his position and the suspension of employment was due to a medical examination that was not passed through no fault of the employee. The last rule is specified in article 121 of the Labor Code of the Russian Federation.

Peculiarities of suspension in connection with the suspension of a special right

Removal from office on the basis of the suspension of a special right has some peculiarities. The suspension of employment relations is possible only under the following circumstances:

• Temporary loss of the right entails the impossibility of performing official functions.
• The employer does not have the opportunity to transfer the employee to another position.

The employer is obliged to offer the employee all the vacancies in the area where the organization is located. Sometimes an employer may offer an employee a position in another locality, but this must be stipulated in collective or employment agreements.

IMPORTANT! If the period of suspension of a special right is more than two months, the employee may be dismissed on the basis of paragraph 9 of Art. 83 of the Labor Code of the Russian Federation.

Suspension procedure

The dismissal of the chief accountant or director is carried out according to the following algorithm:

1. Obtaining an official document on the basis of which the suspension of labor relations is carried out. For example, this may be the requirement of an official, a medical report.
2. A removal order is issued.
3. The issued order is registered in . Its shelf life is 5 years.
4. The employee must be familiarized with the issued order. After familiarization, the employee puts his signature. The date when the order was presented to the employee is also affixed.
5. The employee may refuse to familiarize himself with the official documentation. In this case, an act of refusal is drawn up, signed by the originator and two witnesses.
6. Registration of the act in the appropriate journal.
7. Drawing up a time sheet.

1. Issuance of an order for admission to work after the expiration of the period of suspension of cooperation.
2. Registration of the order in the appropriate journal.
3. Familiarization of the employee with the order. The employee signs at the end of the document.
4. If the employee refuses to take the order in hand, it is required to prepare an act of refusal signed by two witnesses. It is registered in a special journal.

All of these items are mandatory. If, for example, an employee is not familiar with the orders and there are no relevant acts, he has the right to apply to the labor inspectorate with a complaint about unlawful suspension.

Nuances of dismissal of the chief accountant

The dismissal or removal of the chief accountant is a rather complicated process, since this is a high-level specialist in whose hands the key affairs of the organization are concentrated. He has to hand over the cases. The following people can accept them:

• Director of company.
• A person temporarily acting as chief accountant on the basis of an order.

A detailed act of transfer of cases is drawn up, on which both parties put their signatures. It should reflect all the nuances. This will protect the manager from transferring cases in an improper form. If there are many cases to be transferred, a commission with the appropriate competence or auditors can be involved in the process.

IMPORTANT! The accountant, after being removed from office, retains responsibility for violations that were committed by him during his service. It cannot be removed again, but it can be brought to administrative responsibility.

The nuances of the removal of the director

Suspension of labor relations with the director is often carried out at the request of the court or officials. For example, a similar situation may arise when an employee is accused of misappropriation of budget funds. There are no instructions in the Labor Code and the Code of Criminal Procedure regarding the algorithm for removing a director. This procedure can be carried out on the basis of the following standards:

• Rules stipulated by the founding documents.
• Rules specified in the charter of JSC.
• Regulations governing such situations.

If the listed norms are absent, you can be guided by the general principles of the law. The algorithm that is applicable to the chief accountant can also be applied to the director: an order and an act are drawn up. All completed documents are registered in the journal.

ATTENTION! Cases in which employees receive payments during the period forced downtime are listed above. If this situation does not fall under this list, then no salary is paid to the employee.

Ch. worked at the Federal State Budgetary Educational Institution of Higher vocational education in positions and O. Associate Professor, Head of Department accounting and finance.

By orders, she was temporarily suspended from work on the proposal of the investigator on special important matters Investigation Department of the Investigative Committee. This submission was made in relation to the criminal case under investigation against the plaintiff.

Ch. does not agree with the removal, because in accordance with Art. 114 of the Code of Criminal Procedure of the Russian Federation (CPC RF), only the court can issue and send to the place of work a decision on the temporary suspension from work of a suspected or accused employee.

The plaintiff was charged with committing a crime of minor gravity, which excludes by virtue of paragraph 4 of part 2 of Art. 331 of the Labor Code of the Russian Federation, her suspension from work.

As a result, she considers the suspension orders unlawful and unreasonable, and also believes that she is entitled to monetary compensation during forced absenteeism. Ch. asked the court to recognize the orders to remove her from work as illegal, reinstate her at work, and collect the average wage for the time she was forced to absenteeism.

RESPONDENT'S POSITION

federal state budgetary educational institution higher vocational education, the claims of the worker Ch. do not recognize, he believes that the contested orders are legitimate, since the employer carried out the presentation of the investigator.

According to the provisions of Art. 331.1 of the Labor Code of the Russian Federation, the employer is obliged to remove from work teacher upon receipt of information from law enforcement agencies that this worker subject to criminal prosecution.

According to Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend the employee for the entire period of time until the circumstances that were the basis for the suspension from work are eliminated. The employee is not paid wages during the suspension period.

According to information received from the investigating authority, Ch. is being prosecuted on the grounds of a crime related to intentional grave crimes. No other information confirming the re-qualification of Ch.'s actions was received by the employer.

Ch. was charged with misdemeanors following the issuance of suspension orders. In this regard, the defendant believes that the claim is not subject to satisfaction.

POSITION OF THE COURT

The court found that the parties are labor relations. By orders, the plaintiff was removed from work by position and. O. Associate Professor, Head of the Department of Accounting and Finance with reference to Art. 76 of the Labor Code of the Russian Federation.

As the basis for suspension from work, the presentation of the Investigation Department, a certificate of incapacity for work are indicated. Ch. was acquainted with the orders to remove her and agreed, which is confirmed by her signature in the orders.

As follows from the representation on the name and. O. director to take measures to eliminate the circumstances that contributed to the commission of the crime, the investigator for especially important cases of the Investigation Department of the Investigative Committee of the Russian Federation in the manner prescribed by Part. 2 Article. 158 of the Code of Criminal Procedure of the Russian Federation, it was proposed to consider the issue of dismissal (dismissal) of an employee.

The court came to the conclusion that the submission of the investigative body in respect of the plaintiff does not fall within the category of requirements of bodies or officials authorized by federal laws and other regulatory legal acts Russian Federation, binding on the employer by virtue of Art. 76 of the Labor Code of the Russian Federation.

The procedure for removing a suspect (accused) from office is determined by the norms of the criminal procedure legislation.

According to paragraph 10, part 2 of Art. 29 of the Code of Criminal Procedure of the Russian Federation, only the court, including in the course of pre-trial proceedings, is authorized to make decisions on the temporary removal of a suspect or accused from office.

This procedure was not applied to the plaintiff.

By virtue of the provisions of Art. 331.1 of the Labor Code of the Russian Federation, the employer is obliged to remove from work (not allow to work) a pedagogical worker upon receipt of information from law enforcement agencies that this employee is being prosecuted for the crimes specified in paragraphs 3 and 4 of part 2 of Art. 331 of the Labor Code of the Russian Federation.

The employer suspends from work (does not allow to work) a pedagogical worker for the entire period of proceedings in a criminal case until it is terminated or until a court verdict enters into force.

As follows from the note to the indictment, a measure of procedural coercion was chosen in relation to Ch. in the form of an obligation to appear, and a charge of a crime was brought.

The crime, of which the plaintiff was suspected, refers to Ch. 30 of the Criminal Code of the Russian Federation “Crimes against state power, the interests of the public service and service in local governments”, not included in the list provided for in paragraph 3 of part 2 of Art. 331 of the Labor Code of the Russian Federation.

Thus, the employer's orders to remove the plaintiff from work were adopted in violation of the requirements of labor and criminal procedure legislation and are recognized as illegal.

THE COURT'S DECISION

Satisfy the claims of the plaintiff, recognize the orders to dismiss from work as illegal, collect the average wage for the time of forced absenteeism.

The Constitution of the Russian Federation (Article 37) enshrines the provision that everyone has the right to freely dispose of their abilities to work, to choose the type of activity and profession. However, in the course of the investigation of criminal cases, especially those committed by officials using their official powers, one often encounters the fact that they, using their official position, impede the progress of the investigation in order to prevent the establishment of the truth in a criminal case and avoid punishment (they destroy documents, physical evidence, influence their subordinates, not allowing them to testify to the interrogator and investigator, etc.).

In this regard, the temporary suspension from office, provided for by Art. 114 of the Code of Criminal Procedure of the Russian Federation, occupies a special place among the measures of criminal procedural coercion. It is applied to a suspect or accused, restricts the above constitutional right, and if it is a question of dismissal of a civil servant, then the right to equal access to public service is also limited (Part 4, Article 32 of the Constitution of the Russian Federation) .

When resolving the issue of removal from office, the investigator had to take into account the nature of the charge, the strength of the evidence, and in particular the degree of connection of the criminal act with the duties of an official, the consequences of leaving the accused in office and possible harmful consequences in the further performance of his duties by the accused.

One should agree with the opinion of those authors who note that the attribution of removal from office to measures of restraint is debatable. So, according to R.Kh. Yakupov, the removal of the accused from office is closely related to preventive measures, but represents an independent type of procedural coercion measures, since it does not restrict freedom and personal integrity (which occurs when choosing preventive measures), but the constitutional right to choose the type of activity and profession.

Meanwhile, in the legal literature, the position is expressed that the removal of a suspected accused from office pursues not only the goal of preventing attempts to obstruct the elucidation of the truth, but also to ensure the execution of the sentence. So, in particular, A.V. Smirnova notes that such a measure “may ensure the execution of a future punishment in the form of deprivation of the right to occupy certain position or engage in certain activities. Therefore, the accused must be removed not only from public office, but also from work in the specialty, if the crime imputed to him is related to this work (especially if the sanction of the relevant article of the Special Part of the Criminal Code of the Russian Federation provides for punishment in the form of deprivation of the right to engage in certain activities). For example, an accountant, a driver accused of a criminal violation of the rules can be suspended. traffic» .

However, it is rather difficult to agree with the designated position. As rightly noted by P.V. Gridyushko, the application of temporary suspension from office for all crimes for which the Criminal Code of the Russian Federation provides for deprivation of the right to hold a certain position or engage in certain activities as an indispensable duty of the body conducting the criminal process, "is meaningless" .

Supporting this position, it should be noted, firstly, that the decision to remove from office is not the duty of the investigator, the inquirer and the court, but his right. Secondly, it seems that the suspect or the accused will in no way be able to prevent the execution of such a sentence during the preliminary and trial proceedings.

In the criminal procedural legislation of Russia, the normative regulation of the measure of coercion under consideration, in comparison with the previous legislation, has undergone significant changes. In Art. 114 of the Code of Criminal Procedure of the Russian Federation, it is determined that the removal from office is temporary. It began to spread also to the suspect.

However, there is an opinion in the legal literature that rejects the possibility of applying a temporary suspension from office in relation to a suspect. According to O.S. Grechishnikova, when applying this measure of coercion to the suspect, “there is a possibility for the removal of a person from office from the moment a criminal case is initiated, when evidence has not yet been collected, verified, both of the event of the crime itself and of its commission by this person. At the time of bringing in as an accused, these circumstances will already be sufficiently collected and confirmed.

However, it is rather difficult to agree with this position, “because, firstly, at the time a person is given the status of a suspect, there is already a certain minimum of evidence indicating both the event of a crime and the involvement of the suspect in its commission; secondly, in this case, the main purpose of the suspension of the suspect from office will be precisely to prevent him from being able to prevent the collection and confirmation of circumstances indicating his guilt, sufficient to bring charges.

Thus, the specified measure of coercion should first of all be applied to officials associated with an organized criminal community, against whom a criminal case has been initiated on the grounds of crimes in the field of economic activity or crimes against state power, the interests of public service and service in local governments.

For example, the measure of coercion in question was applied to P., the head of the administration of one of the cities of the Kemerovo region, who ordered to place the funds of the city budget in one of the commercial banks under the control of an organized criminal community, and allowed their misuse. Since it was assumed that in relation to P. the petition for the application of a preventive measure in the form of detention could be refused, the investigator, with the consent of the prosecutor, simultaneously sent a petition for the temporary removal of P. from office. This request was granted by the court.

In Art. 114 of the Code of Criminal Procedure of the Russian Federation, the legislator established a judicial procedure for the temporary removal of a suspect and the accused from office, which was strengthened by prosecutorial supervision in the form of the prosecutor giving consent to initiate a petition before the court. Subsequently, taking into account the changes made to the Code of Criminal Procedure of the Russian Federation by Federal Law No. 87-FZ of June 5, 2007, the said petition began to be initiated before the court by the investigator with the consent of the head of the investigative body, and by the interrogating officer with the consent of the prosecutor.

Another significant innovation is the granting of the right to a monthly allowance of five minimum dimensions wages.

However, in the legal literature, many procedural scientists point to the possibility of applying the measure of procedural coercion under consideration only in relation to an official.

Thus, as rightly noted by B.T. Bezlepkin, since “a position in the broad (literal) sense of the word means a place occupied in the service, it should be considered that the coercive measure in question applies to all employees, that is, not only officials and government officials, but also municipal employees employees in local self-government bodies, as well as non-state (commercial and other) structures, suspected or accused in a criminal case ... ".

In this regard, in the criminal process, when applying temporary suspension from office, it is impossible to build on the concept of an official given in the Appendix to Art. 285 of the Criminal Code of the Russian Federation.

F.N. Bagautdinov, according to whom today one can hardly agree with such a point of view. “Many examples can be cited when leaders and officials, while behind bars, formally continue to hold their positions and, moreover, actively use them, hindering the investigation. Therefore, the adoption of a decision on the temporary removal of the accused from office is possible and even necessary even when he is taken into custody. Moreover, such a decision will be the basis for appointing another person to act in the position of the temporarily suspended accused.

Indeed, since the law does not prohibit, based on the circumstances of the case, it is possible to simultaneously choose in relation to the accused official: a preventive measure - bail and suspension from office; recognizance not to leave the place and temporary removal from office; personal guarantee and suspension from office; house arrest and suspension from office (in the latter case, one can, in particular, manage an enterprise while under house arrest).

At the same time, in our opinion, the removal from office of a person in respect of whom a measure of restraint in the form of detention has been chosen does not make any sense. In conditions of isolation from society, a person loses the opportunity to use his official position, which means that there will be no fear that he will interfere with the course of the investigation.

The study of Art. 114 of the Code of Criminal Procedure of the Russian Federation shows that the legislator has not yet fully resolved a set of issues related to the procedure for applying a measure of procedural coercion in the form of removal of a suspect or accused from office. The grounds for the removal of a suspect or an accused from office are formulated rather incorrectly by using the evaluative expression “if necessary”, which is understood ambiguously in law enforcement, and practitioners experience objective difficulties in operating with it.

This is also confirmed by studies of the practical application of this measure. So, according to a study conducted by K.V. Zaderako, the measure of coercion in question is used quite rarely, including in the proceedings on cases of grave crimes, only three of the investigators interviewed by the scientist applied to the court to apply this measure of coercion.

In order to eliminate the said F.N. Bagautdinov proposed to enshrine in the law specific cases that necessitate the removal of the accused (suspected) from office. Among these, he named: a crime for which an official is involved, committed at his place of work or related to the activities of the enterprise or organization where he works; in a criminal case in which an official is involved, persons subordinate to him or her by work participate as accused, suspected or witnesses; an official, using his official position, impedes the proceedings on a criminal case.

According to B.C. Chistyakova, in order to apply this measure, “reasons are needed to believe that the official involved as an accused, while remaining in his position, will be able to continue criminal activity, interfere with the establishment of the truth in the case by destroying the traces of the crime, falsifying documents, influencing subordinate witnesses, accomplices, etc. It follows from this that removal from office can only be used to prevent the accused from committing such actions and thereby hinder the successful course of the investigation into the case.

Even earlier, Yu.D. Livshits expressed the opinion that it would be quite legitimate to remove a person from his position if the crime committed by him, although not related to his position, discredits this person in the eyes of others, mainly subordinates, as a result of which the prestige of the institution as a whole is undermined.

However, from the point of view of our time, it is rather difficult to agree with this opinion. Within the framework of the principle of the presumption of innocence, such a judgment cannot be recognized as correct. "Discrediting the institution where the suspect or the accused works, in no case can be the basis for temporary removal from office."

Without disputing in general the significance of the circumstances proposed above as grounds for temporary removal from office, we propose to enshrine the following wording in the law: there are sufficient grounds to believe that the suspect or the accused, while remaining in the same place of work, may interfere with the criminal proceedings, compensation for the crime caused damage or continue to engage in criminal activities associated with being in this position.

Temporary removal from office, in accordance with Part 1 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, is carried out according to a reasoned decision of the judge, issued on the basis of a petition, which is initiated by the interrogator with the consent of the prosecutor and the investigator with the consent of the head of the investigative body at the place of preliminary investigation, which leads to the conclusion that it is impossible to remove the accused (defendant) from office in the judicial stages and at the discretion of the judge. We believe that the need for removal from office may also arise in the judicial stages, and therefore the judge cannot be deprived of the right in question. In this connection, Art. 114 of the Code of Criminal Procedure of the Russian Federation needs an appropriate addition.

In Art. 114 of the Code of Criminal Procedure of the Russian Federation does not regulate the procedure for consideration by a judge of a petition to remove the accused from office. This article does not indicate that the petition is considered according to the rules established by Art. 165 of the Code of Criminal Procedure of the Russian Federation (as, for example, it is done in Article 115 of the Code of Criminal Procedure of the Russian Federation in relation to the consideration by the judge of a petition to seize property).

In this regard, B.B. Bulatov and V.V. Nikolyuk propose to consider such a petition according to the rules of Art. 165 Code of Criminal Procedure of the Russian Federation.

K.V. does not agree with this position. Zaderaco, who quite rightly believes that the removed person has the right to know the motives for removal from office and be able to object.

In this regard, the opinion of this researcher should be supported that a petition for choosing a measure of coercion in the form of temporary removal from office should be considered in the manner prescribed by Art. 108 of the Code of Criminal Procedure of the Russian Federation, which should be expressly stated in Art. 114 Code of Criminal Procedure of the Russian Federation.

Thus, the enforcement of a court decision on the removal of a serviceman from office in this case is carried out, as a rule, not by issuing an order to remove him from office, but by releasing him from office and placing him at the disposal of the corresponding commander (chief) before the court makes a decision.

In accordance with sp. 10 hours 2 tbsp. 29 and part 2 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, temporary removal from office is carried out on the basis of a court decision. However, according to part 5 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, for the removal from office of the head of the higher executive body the state authorities of a constituent entity of the Russian Federation, in the event that he is charged with a grave or especially grave crime, a special procedure is provided for, which involves the submission by the Prosecutor General of the Russian Federation to the President of the Russian Federation of a proposal for the temporary removal of the said person from office.

Thus, when the head of the highest executive body of state power of a constituent entity of the Russian Federation is removed from office, a court decision is not required. Only the decision of the President of the Russian Federation is enough. In this regard, we can conclude that the legislator introduced, in essence, a new participant in criminal proceedings - the President of the Russian Federation.

At the same time, as rightly noted in the legal literature, the President of the Russian Federation "for all the importance of his position as head of state, cannot replace the judiciary" .

In this regard, in part 5 of Art. 144 of the Code of Criminal Procedure of the Russian Federation, it is necessary to consolidate the provision that the decision on temporary removal from office in the above situation should be taken by the Supreme Court of the Russian Federation on the basis of the proposal of the President of the Russian Federation, based on the proposal of the Prosecutor General of the Russian Federation.

In this situation, it seems unjustified that the list of subjects entitled to annulment of this measure does not contain a judge, who, undoubtedly, should have powers both in the course of pre-trial proceedings (for example, when considering a complaint against a rejected application for annulment of this measure), and and in the course of the court proceedings (if it is no longer necessary and the measure has not been canceled by the investigator and the prosecutor) to make a decision to cancel the removal from office.

Based on the results of the study of the above questions, the following conclusions can be drawn:

1 The legislator did not provide optimal regulatory regulation

measures of procedural coercion in the form of temporary removal from office. As a result, practitioners experience objective difficulties in applying this measure.

2 For the sake of improvement legal regulation the said measure of procedural coercion and the exclusion of law enforcement errors, it is necessary to state Art. 114 of the Criminal Procedure Code of the Russian Federation “Temporary removal from office” as follows: “1 Temporary removal from office consists in prohibiting the suspect or the accused from performing official duties, performing the work that he performed or engaging in activities in which he was engaged.

2 Suspension from office is elected if there are sufficient grounds to believe that the suspect or accused, while remaining at the same place of work, may interfere with the proceedings in a criminal case, compensation for damage caused by a crime, or continue to engage in criminal activities related to being in this position.

3 If it is necessary to temporarily remove the suspect or the accused from office, the prosecutor-investigator, with the consent of the head of the investigative body, and the interrogating officer, with the consent of the prosecutor, file an appropriate petition with the court at the place of the preliminary investigation.

4 Within 24 hours from the moment of receipt of the petition, the judge, in the manner prescribed by Article 108 of this Code, issues a decision on the temporary removal of the suspect or the accused from office or on refusal to do so.

5 The decision on the temporary removal of the suspect or the accused from office is sent to the place of work or to the head of a higher organization (institution).

6 Suspension of a suspect or accused person from office is canceled on the basis of a decision of the investigator, interrogating officer, judge or court ruling, when the application of this measure is no longer necessary.

7 If a high official of a constituent entity of the Russian Federation (the head of the supreme executive body of state power of a constituent entity of the Russian Federation) is involved as an accused and is charged with committing a grave or especially grave crime, the Prosecutor General of the Russian Federation, with the consent of the President of the Russian Federation, shall file a petition for temporary suspension from positions of the said person before the Supreme Court of the Russian Federation.

8 The decision to remove the accused from office after the transfer of the criminal case to the court is made by the judge (court), if there are grounds for this, specified in part two of this article, at the request of the prosecution or on its own initiative.

9 A suspect or accused who has been suspended from office has the right to a monthly allowance, which is paid to him in accordance with paragraph 8 of the second part of Article 131 of this Code.”

Article 32 Law on State civil service:

"1. The representative of the employer is obliged to remove from the civil service position to be replaced (not to allow official duties) civil servant:

1) appeared in the service in a state of alcoholic, narcotic or other toxic intoxication;

2) not passed in in due course training and testing of knowledge and skills in the field of protection of professional performance (labor protection);

3) brought in as an accused, in respect of whom the court issued a decision on temporary removal from office in accordance with the provisions of the criminal procedure legislation of the Russian Federation.

2. The representative of the employer has the right to remove from the civil service position to be replaced (not to allow the performance of official duties) a civil servant for the period:

1) settlement of conflicts of interest;

2) checking:

a) the reliability and completeness of information on income, expenses, property and liabilities of a property nature, submitted by civil servants in accordance with the Federal lawdated December 25, 2008 N 273-FZ "On Combating Corruption" and other federal laws;

b) information provided by a civil servant when entering the civil service in accordance with the regulatory legal acts of the Russian Federation;

c) observance by civil servants of restrictions and prohibitions, requirements for the prevention or settlement of conflicts of interest, performance of duties established by the Federal lawdated December 25, 2008 N 273-FZ "On Combating Corruption" and other federal laws.

2.1. In those specified inpart 2 of this article cases, a civil servant may be removed from the civil service position to be replaced (not allowed to perform official duties) for a period not exceeding 60 days from the date of the decision to resolve the conflict of interest or to conduct an audit. The specified period may be extended up to 90 days by the person who made the relevant decision. At the same time, the civil servant retains a monetary allowance for the entire period of removal from the civil service position to be replaced (performance of official duties).

3. The representative of the employer removes from the civil service position to be replaced (does not allow to perform official duties) a civil servant for the entire period until the circumstances that are the basis for removal from the civil service position to be replaced (prevention from performing official duties) due to the fault of the civil servant are eliminated.

4. During the period of removal from the civil service position to be substituted (prevention from performing official duties) of a civil servant, he is not charged with monetary allowance, except as provided for by federal laws.

Article 18 of the Law on service in the customs authorities:

"1. Head of the Federal customs service appointed and dismissed by the Government of the Russian Federation.

The head of the Federal Customs Service has deputies, the number of which is established by the Government of the Russian Federation.

2. Deputy heads of the Federal Customs Service are appointed and dismissed by the Government of the Russian Federation on the proposal of the head of the Federal Customs Service.

2.1. Heads of regional customs departments, customs offices and customs posts are appointed and dismissed by the head of the Federal Customs Service.

3. Other employees customs authorities are appointed to positions and dismissed from positions by order of the head of the relevant customs authority.

4. An employee of a customs body, with his consent, may be assigned for a period of up to three months to perform the duties of the position, the appointment to which is made by order of the head of a higher customs body.

5. Upon dismissal of a customs officer in connection with the liquidation of the customs authority or a reduction in the number or staff of the customs authority (hereinafter referred to as organizational and staffing measures), he, with his consent, is credited to the disposal of the customs authority for a period of up to three months with the preservation of monetary allowance for subsequent employment .

The period of stay of a customs officer at the disposal of the customs authority does not include the time of illness or his being on regular and additional holidays.

6. A customs officer who has committed a violation of official duties may be temporarily, for no more than one month, suspended from the performance of official duties with the preservation of monetary allowance. The decision to remove the specified employee from the performance of official duties is made by the head of the customs authority who appointed him to the position, the head of the higher customs authority who appointed him to the position, or the head of the Federal Customs Service.

With regard to civil servants, the legislator establishes two groups of grounds for removal from a occupied position. In the first case, the representative of the employer is obliged to remove the civil servant. In the second case, the right to make a decision on removal. The first group includes grounds that impede the execution official duties(appearing in a state of intoxication; brought in as an accused, in respect of whom the court issued a decision on temporary removal from office in accordance with the provisions of the criminal procedure legislation of the Russian Federation; non-compliance with labor protection requirements).

Currently, the Temporary Instruction on the procedure for a medical examination to establish the fact of alcohol consumption and intoxication, approved by the Deputy Minister of Health of the USSR on September 1, 1988, No. 06-14 / 33-14, continues to operate.

Article 114 of the Criminal Procedure Code of the Russian Federation regulates the procedure for the temporary removal from office of a suspect or accused, which is carried out on the basis of a court order and is canceled on the basis of a decision of the interrogating officer, investigator, when the application of this measure is no longer necessary.

The procedure for training in labor protection and testing knowledge of labor protection requirements for employees of organizations was approved by the Decree of the Ministry of Labor of Russia and the Ministry of Education of Russia dated 13.01.2003 N 1/29.

The grounds of the second group can only indirectly create obstacles to the performance of official duties (conducting inspections; resolving conflicts of interest). In this case, a civil servant may be suspended from the performance of official duties for the time of establishing the facts of violations of anti-corruption legislation.

A civil servant may be suspended for the duration of the verification of the information provided by a civil servant upon admission to the civil service. The procedure for providing information on income, on property and liabilities of a property nature is regulated by Decree of the President of the Russian Federation of May 18, 2009 N 559 "On the submission by citizens applying for positions in the federal public service and federal civil servants of information on income, property and liabilities of a property nature" . Decree of the President of the Russian Federation of September 21, 2009 N 1065 approved the procedure for verifying the accuracy and completeness of information on income, property and property obligations provided by citizens applying for positions in the federal state civil service.

A civil servant may be removed from his position for the period of verification of compliance with the prohibitions, restrictions and requirements for the prevention or settlement of conflicts of interest established by Art. Art. 16, 17, 19 of the Law on the State Civil Service.

In the event of the temporary removal of an employee from the position to be replaced on the grounds specified in Part 2 of Art. 32 of the commented Law, the guarantees for the protection of the interests of a civil servant are: deadline(no more than 60 days (extension up to 90 days) from the date of the decision to resolve the conflict of interest or to conduct an audit); maintaining the financial allowance for the entire period of removal from the civil service position to be replaced (execution of official duties).

The Law on Service in the Customs Authorities does not diversify the list of grounds for temporary removal from a occupied position. In accordance with Art. 18 of the commented Federal Law, a customs officer who has committed a violation of official duties may be temporarily suspended from their performance. The legislator uses Art. 18 the wording "may be temporarily ... suspended from the performance of official duties." Thus, in relation to employees, there is no mandatory rule that prescribes the mandatory removal of an employee from a occupied position. The decision to remove the specified employee from the performance of official duties is made by the head of the customs body who appointed him to the position, the head of the higher customs body who appointed him to the position, or the head of the Federal Customs Service.

The duties of a customs officer are established by Art. 17 of the Law on service in the customs authorities. In addition, by virtue of the provisions of Art. 7.1 the customs officer is subject to restrictions, prohibitions and obligations established by the Federal Law of December 25, 2008 N 273-FZ "On Combating Corruption" and Art. Art. 17, 18 and 20 of the Civil Service Law.

A customs officer may be suspended from the performance of official duties for no more than one month.

Another guarantee of protecting the interests of customs officers is the preservation of monetary allowance. Federal Law "On social guarantees some federal bodies executive power and amendments to certain legislative acts of the Russian Federation" it was established that in the event of an employee being temporarily removed from office, he is paid a monetary allowance calculated on the basis of the official salary, salary for a special rank, a monthly allowance to the salary for the length of service (length of service years).

A similar rule is contained in the letter of the Federal Customs Service of the Russian Federation of October 25, 2011 N 01-11 / 51520 "On guidelines on the procedure for paying monetary allowances to employees of the customs authorities of the Russian Federation. "The document provides that employees who have committed a violation of official duties, temporarily suspended from the performance of official duties for no more than one month, are paid monetary allowances in full.

There is another approach to payments to employees whose guilt in committing a crime has been established in court. Employees convicted of crimes on the basis of a court verdict that has entered into legal force are not paid monetary allowance for the time they are in custody (paragraph 59 of the letter of the Federal Customs Service of Russia of October 25, 2011 N 01-11 / 51520).

5.10. Suspension from a public service position

At its core, suspension from work is an employer's obligation to an employee who, for certain reasons, cannot continue to perform his job duties. The grounds for using such a measure are regulated by Art. 76 Labor Code RF and provide for not allowing an employee to work or stopping it if the worker has already started it.

In the event that grounds for suspension from performance of official duties are identified, the head must immediately take appropriate measures. It does not matter the need for production or other mitigating factors.

The concept of "non-admission", although similar to "dismissal", but they have some differences. In particular, the first is used when the grounds are identified before the start of the work of the employee. The second is used when they were discovered after he took up his official duties.

From a legal point of view, suspension from work does not entail changes employment contract or its termination. However, in some cases, this may be a prerequisite for the dismissal of an employee. For example, when a worker appears at the workplace in a state of alcoholic or other type of intoxication, he is initially not allowed to work or is removed from it. And after that, the employer has the right to use this circumstance as a basis for terminating the employment relationship.

Exclusion from work, in itself, is a temporary measure, valid until the grounds that led to its use are eliminated. During the period of suspension of the worker from work, wages are often not accrued to him. Except for situations where the opposite is stipulated by the norms of the Labor Code of the Russian Federation or other legislative acts.

Grounds for preventing or removing a worker from work

The grounds for the application of these measures are enshrined in Article 76 of the Labor Code of the Russian Federation and include:

• Appearing on the territory of the enterprise in a state of alcoholic or other type of intoxication;
• Failure to obtain a certificate of passing a mandatory medical examination, if its presence is required for the employee to perform his duties;
• Failure to pass mandatory training or testing of the level of knowledge in the field of labor protection;
• Suspension of the license or right to carry out the type of activity necessary for the work of the worker for up to 2 months;
• Deterioration of the state of health, confirmed by the decision of a special medical commission, which prevents the employee from continuing to work in his position;
• Requirements of authorized officials and employees of state bodies, as well as other grounds provided for by the Federal Law or other regulatory acts.

According to part 2 of article 76 of the Labor Code of the Russian Federation in general order the suspension is valid until the circumstances that led to the imposition of the restriction are eliminated. However, in a number of cases provided for by applicable law, admission to work may depend on other factors.

The procedure for issuing a suspension from work

Regardless of who initiated the suspension from work, the procedure for issuing this measure will depend on the internal procedures of the company itself and its scope of activity. In a number of industries, this process is significantly different, including it can be significantly simplified: for example, in enterprises operating in the field of catering (including public).

However, despite the fact that in various areas the procedure for processing suspension from work may vary, there are basic rules that apply in all cases. So any circumstances that have become grounds for preventing employees from work must be recorded in writing or have documentary evidence. Often, this document takes the form of a memorandum addressed to the head or a special act drawn up in the prescribed manner.

The suspension itself is issued in the form of an order or order for the enterprise. These documents do not have a unified form, but must be drawn up in accordance with the rules for the design of official papers. In addition, they should contain information on:

• The person who will be suspended from work (his full name, as well as an indication of the position held);
• Circumstances that caused the non-admission to the performance of official duties;
• The duration of the restriction, if an exact date can be set;
• Actions that the employee needs to take to remove the restriction, if necessary, to resume work;
• If necessary, the data of the person temporarily acting as the suspended employee are indicated.

If it is necessary to remove an employee from work in as soon as possible, in some cases a simplified scheme can be used. For example, when a worker appears at the workplace in a state of intoxication, the health worker initiates this procedure by conducting an examination and sending an appropriate conclusion to the head of the enterprise. With the direct participation of the employer this procedure is also significantly accelerated.

However, even the use of a simplified scheme involves the execution of the necessary papers. If a suspension from work has been applied to a worker, the order must be drawn up immediately. This measure is necessary both to confirm the date and time of suspension of official duties of an employee, and for correct financial accounting. On the basis of this document, the accrual of wages to the suspended employee will be terminated, unless otherwise provided by applicable law.

After signing and issuing an order or order, the employee must be familiarized with it in the prescribed manner against signature. If he refuses to familiarize himself with this document, his text is read out to him, after which an appropriate act is drawn up signed by at least 2 witnesses.

Legal Consequences of Suspension from Performance of Official Duties

Regarding the legal consequences of the removal of an employee from work, they have several results:

• Resumption labor activity after elimination of grounds for restriction;
• Transfer of an employee to another position (often used when receiving a medical report on the deterioration of the citizen’s health and the impossibility of continuing to work in the current position);
• Termination of the employment contract.

Each of them must be documented and accompanied by an appropriate order or instruction for the enterprise, signed by its head.

With regards to payment for the time of suspension, then in general, according to part 3 of article 76 of the Labor Code of the Russian Federation, during this period the salary of the worker is not charged. However, this rule does not apply if the reason for non-admission to work was the failure to undergo a medical examination, necessary training or knowledge testing in the field of labor protection, which was admitted through no fault of the employee. In this case, this time, up to the resumption of work, must be paid as downtime in the manner prescribed by Article 157 of the Labor Code of the Russian Federation.

This also applies to cases where the suspension from the performance of official duties was declared illegal or carried out with violations of the registration procedure. In this case, according to Article 234 of the Labor Code of the Russian Federation, the employer is obliged to compensate the worker for all wages not received by him.

If the suspension occurred through no fault of the worker or with violations of applicable law, then this period of time should be included in the length of service giving the right to accrue annual rest days. In all other cases, this time is regarded as an absence without good reason, as a result of which it is not included in the length of service that gives the right to leave.

Features of the removal of civil servants from their positions

The norms of labor legislation equally apply to both employees working in private enterprises and civil servants. However, industry regulations also apply to the latter.

According to Article 32 of the Federal Law No. 79-FZ of July 27, 2004. "On the State Civil Service" a civil servant must be removed from his post in the event of:

• His appearance at the workplace in a state of intoxication;
• Failure to pass mandatory training or knowledge testing in the field of labor protection;
• Issuance of a court decision in respect of him on temporary suspension from the performance of official duties, in accordance with the norms of the current criminal procedure legislation of the Russian Federation.

The provisions are similar to the text of Article 76 of the Labor Code of the Russian Federation, however, there are a number of nuances. In accordance with part 3 of article 32 of the Federal Law No. 79-FZ, a civil servant is not allowed to perform his duties, depending on the guilt of the worker.

When a civil servant is removed from his position in accordance with part 4 of article 32 of the Federal Law No. 79-FZ, he is not paid a salary. Since the presence of guilt is a fundamental factor in preventing the performance of official duties, the grounds for payment wages in this case no.

After the elimination of the circumstances that led to the removal from office, the employee must be immediately allowed to work, unless otherwise provided by applicable law.

Civil servants also have an additional ground for suspension, which does not apply to other employees. They may be temporarily not allowed to work in connection with the internal check. In this case, the suspension is made by the representative of the employer who initiated the inspection. The period of restriction of the employee's labor activity will also depend on its duration. It should be noted that at the time of the audit, the suspended employee, in accordance with Article 59 of the Federal Law No. 79-FZ, retains a monetary allowance.

In addition, the representative of the employer, in the event of a conflict of interest, also has the right to remove the civil servant from his official duties until the resolution of controversial issues. In this case, he will continue to pay salaries all the time necessary to resolve the conflict. This right is enshrined in part 2 of article 32 of the Federal Law No. 79-FZ.

In addition to the Federal Laws, civil servants are also subject to regulations adopted in the subjects of the Russian Federation. Their provisions may impose additional restrictions. For example, a ban on the appointment of a civil servant to another position during his removal from office.

Officials may not be allowed to work if they do not have a certificate of medical examination or psychological examination, if they are necessary for the performance of their duties. They must also be removed upon receipt by the representative of the employer of honey. conclusion, providing for contraindications for the performance of the duties of a civil servant, fixed by an employment contract.

Regarding the removal of municipal employees, the corresponding procedure is enshrined in Federal Law No. 25-FZ of 03/02/2007. "O municipal service in RF". According to Article 27 of this regulatory act, such a measure as removal from the performance of duties may be applied to an official if he committed disciplinary offense. At the same time, the exclusion from work will be valid until a decision is made on the disciplinary measure to be imposed, but not more than a month. The payment of wages for municipal employees is preserved. In this case, the suspension is formalized by drawing up a municipal legal act.

State and municipal employees are equally subject to both the norms of federal laws regulating activities in this industry and general provisions labor legislation.