The Prosecutor's Office of the Russian Federation is a unified federal system of bodies that, on behalf of the state, oversee the implementation of laws and the observance of human and civil rights and freedoms, including by governing bodies and heads of commercial and non-commercial organizations (clauses 1, 2, Art. 1 Federal Law of January 17, 1992 N 2202-I "On the Prosecutor's Office of the Russian Federation", hereinafter - the Law on the Prosecutor's Office). When exercising supervision, prosecutors have the right to conduct inspections (paragraph 2 of clause 1 of article 22, paragraphs 2 and 5 of clause 1 of article 27 of the Law on the Prosecutor's Office). Prosecutor's check - that is, checking by the prosecutor of the implementation of laws or checking by the prosecutor of the observance of human and civil rights and freedoms - is the most common means of prosecutorial supervision, used in all its directions and associated with the detection of any offenses.
The verification procedure is not legally fixed. It is important that in its conduct, prosecutors are guided by the norms of the Law on the Prosecutor's Office. The rights and obligations of inspectors provided for by the Federal Law of December 26, 2008 N 294-FZ "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Exercise of State Control (Supervision) and Municipal Control" (hereinafter - Law N 294-FZ), are not apply to prosecutors (clause 3, part 3, article 1 of Law N 294-FZ).

Prosecutorial inspections have their own characteristics:
1. A prosecutor's inspection is carried out, as a rule, on the basis of information received by the prosecutor's office on the facts of violation of laws (paragraph 2, clause 2 of article 21 of the Law on the Prosecutor's Office, clause 6 of the order of the General Prosecutor's Office of the Russian Federation of December 7, 2007 N 195 "On organization of prosecutorial supervision over the execution of laws, observance of human and civil rights and freedoms ", hereinafter - Order No. 195). However, some of the checks are carried out on the basis of the prosecutors' own work plans for the next calendar period. Such plans are official documents, access to which is closed. Thus, the fact of verification usually comes as a complete surprise to the subjects of verification.
2. The law prohibits interference in the exercise of prosecutorial supervision, in connection with which the prosecutor is not obliged to give any explanations on the merits of the cases and materials in his production, as well as provide them to anyone for familiarization (paragraph 2 of article 5 Of the Law on the Prosecutor's Office). No one also has the right, without the permission of the prosecutor, to disclose the materials of inspections carried out by the prosecution authorities until they are completed (paragraph 3 of article 5 of the Law on the Prosecutor's Office). Thus, control over the actions of the prosecutor conducting the inspection is difficult.
3. According to the law, the prosecutor checks the implementation of the Constitution of the Russian Federation and laws, as well as the observance of human rights and freedoms by the governing bodies and heads of commercial and non-commercial organizations (clauses 1, 2, article 1 of the Law on the Prosecutor's Office). In fact, prosecutors also check the implementation of bylaws issued on the basis of and in pursuance of a specific law (clause 9 of the Instruction, approved by order of the General Prosecutor's Office of the Russian Federation of June 7, 2011 N 168, resolution of the FAS of the Volgo-Vyatka District of 10/25/2004 on case N A39-4211 / 2003-148 / 18, cassation ruling of the St. Petersburg City Court dated January 24, 2012 N 33-734 / 2012), and conduct checks in relation to legal entities (decision of the Supreme Court of the Republic of Mordovia dated July 6, 2012 G. N 7.2-49 / 2012).
4. The term of the inspection is not directly limited by the legislation. We can talk about an indirect limitation of thirty days for an inspection carried out on the fact of an application to the prosecutor's office, since it is during this period that the prosecutor is obliged to resolve the appeal received to him (clause 5.1 of the instructions on the procedure for considering appeals and receiving citizens in the prosecutor's office of the Russian Federation, approved. by order of the General Prosecutor's Office of the Russian Federation of January 30, 2013 N 45, hereinafter - Instruction N 45).
5. Prosecutor's inspections can be both on-site and documentary. Instruction No. 45 recommends that prosecutors carry out on-site checks on the facts of complaints about systematic infringement of the rights and freedoms of citizens, numerous or gross violations of the law, as well as appeals on the most pressing (resonant) issues (clause 4.3 of Instruction No. 45).
6 When conducting an inspection, the prosecutor has the right to request the submission of the necessary documents, materials, statistical and other information (paragraph 3, paragraph 1 of article 22 of the Law on the Prosecutor's Office), which are provided to him free of charge (paragraph 2 of article 6 of the Law on the Prosecutor's Office).
7. The subject and scope of the inspection is not limited by law. However, when carrying out an inspection, the prosecutor does not have the right to interfere with the operational and economic activities of organizations (paragraph 2 of article 26 of the Law on the Prosecutor's Office). In addition, the prosecution authorities are prohibited from substituting other state bodies and officials who monitor the implementation of laws and the observance of human and civil rights and freedoms (paragraph 2 of article 21, paragraph 2 of article 26 of the Law on the Prosecutor's Office), but these prohibitions is not specified either in the Law on the Prosecutor's Office, or in by-laws, or in judicial practice.
8. The result of the check is drawn up in an arbitrary way, since the legislation does not contain requirements for such a document. In practice, there are cases of formalizing the results of an inspection by an inspection report, inspection protocol, protocol or inspection report, letter. Such documents comply with the provisions of the Law on the Prosecutor's Office and are grounds for applying prosecutorial response measures - making a submission to eliminate violations of the law or warnings about the inadmissibility of violating the law (Articles 23, 24, 25.1 of the Law on the Prosecutor's Office). However, sometimes, based on the results of the inspection, the prosecutor initiates an administrative offense case, issuing an appropriate resolution (paragraph 2 of article 22, article 25 of the Law on the Prosecutor's Office, part 2 of article 28.4 of the Code of Administrative Offenses of the Russian Federation). Such a resolution must be drawn up according to the rules provided for drawing up a protocol on an administrative offense (part 2 of article 28.4, article 28.2 of the Administrative Code of the Russian Federation), in particular, the place, time and event of an administrative offense, an explanation of an individual or a legal representative of a legal entity are indicated. persons against whom a case has been initiated. This resolution is sent for consideration to the authorized body or official (Article 25 of the Law on the Prosecutor's Office), which, based on the results of the consideration, make a decision on the merits (Article 29.9 of the Administrative Code of the Russian Federation).
9. The requirements of the prosecutor, put forward by him in the process of verification, must be satisfied. Otherwise, the perpetrators may be held liable under Art. 17.7 of the Code of Administrative Offenses of the Russian Federation (Failure to comply with the legal requirements of the prosecutor). The sanctions are very strict: for entrepreneurs, a fine is from 2,000 to 3,000 rubles; for legal entities - a fine from 50,000 to 100,000 rubles or administrative suspension of activities for up to 90 days.
10. An appeal against the actions of the prosecutor is possible:
- within the framework of the Law of the Russian Federation of April 27, 1993 N 4866-I "On appeal in court of actions and decisions that violate the rights and freedoms of citizens", hereinafter - Law N 4866-1, (only citizens can appeal) - to a higher prosecutor or to court (part 1 of article 4 of Law N 4866-1);
- according to the rules of Chapter 25 of the Code of Civil Procedure of the Russian Federation (both citizens and organizations can appeal) - to the district court at the location of the prosecutor's office or at the place of residence of the citizen (Article 24, Part 2 of Article 254 of the Code of Civil Procedure of the Russian Federation).
The decision of the prosecutor to initiate an administrative offense case is not appealed (resolution of the Thirteenth Arbitration Court of Appeal dated 05.12.2013 N 13AP-24766/13; clause 1 of Chapter 4 of the Review of the judicial practice of the Chelyabinsk Regional Court for the first quarter of 2011, approved by the resolution of the Presidium Chelyabinsk Regional Court dated June 15, 2011). The decision on the appointment of an administrative penalty is appealed according to the rules of Chapter 30 of the Code of Administrative Offenses of the Russian Federation.

In case of violation of laws, employees of the prosecutor's office are authorized to inspect business entities of any form of ownership, including non-state ones.

Reason for inspection by the prosecutor's office:

● statements and complaints of citizens
● materials of inspections of management and control bodies;
● media reports;
● materials of the analysis of the state of law, carried out by the prosecutor's office;
● materials of statistics, supervisory, investigative, judicial practice.

Thus, the prosecutor's office has a wide range of possibilities for coming with a check to an enterprise of any form of ownership. The powers that are vested in prosecutors in the course of an inspection are also extremely extensive.

The prosecutor does not necessarily use all this sinister arsenal during the audit. On the contrary, practice shows that he is usually interested in one particular issue of the activity of the person being checked.

Finally, let's move on from prosecutorial rights to civil duties. Officials and citizens are obliged to appear when summoned by the prosecutor and give explanations on the circumstances that are clarified by the prosecutor's check.

The main function of the prosecutor's office is to oversee the observance of laws, including in the activities of legal entities.

As we can see, the formulations are so broad that the entire activity of a legal entity falls within the scope of prosecutor's supervision, i.e. prosecutor's officecan test you for anything... It can be hiring and firing workers, carrying out licensed activities, paying taxes, renting state and municipal property, etc.

The Federal Law "On the Prosecutor's Office of the Russian Federation" introduces certain restrictions on the subject of prosecutorial inspections, establishing in Art. Art. 21 and 26, that the prosecutor's office does not replace other state bodies in the exercise of supervision. However, in practice, this limitation can be circumvented quite simply. The prosecutor simply instructs the relevant state body to carry out such and such an inspection. In the prosecutor's office, such checks are called "joint" or "with the involvement of specialists."

Anything can serve as a basis for conducting an audit.

In practice, the reason for conducting a prosecutor's check against a legal entity is two reasons:

● citizen complaints
● a plan for conducting inspections (the General Prosecutor's Office annually approves an inspection plan, which determines what exactly and in what time frame the prosecutor's office should check, this plan is sent to the prosecutor's offices of the constituent entities of the Russian Federation, which supplement it with their own inspections, and this amended plan "goes down" to the district ( city) prosecutor's offices, which carry out direct checks.

The inspection procedure differs from the inspection procedures of other bodies

Firstly, there is no provision for the procedural registration of the beginning of the inspection. Therefore, the prosecutor who conducts the inspection does not present you with any decisions (orders, orders) to start the inspection. Your demands to the prosecutor's office employee to present any order (order, etc.) to conduct an inspection will be illegal. The only thing that you can demand from him is to present his official ID. Well, and, of course, call the prosecutor and clarify whether an inspection is really being carried out.

Secondly, the scope of the audit is not established. If the Federal Law "On the Protection of the Rights of Legal Entities and Individual Entrepreneurs in the Implementation of Measures of State Control (Supervision)" obliges to indicate in the order (order) the subject of inspection and prohibits going beyond it, then this restriction does not apply to an employee of the prosecutor's office. Having come to you with a check on one issue, he can check you in other areas. The only limit here is the time and desire of the prosecutor himself.

Thirdly, according to the results of the audit, no act is drawn up. If in the course of the inspection any violation is found in you, then you will receive either a submission to eliminate violations of the law, or a protest, or issue a resolution to initiate administrative proceedings, or issue a warning about the inadmissibility of violations of the law.

If they don't find anything, they just silently leave.

Consider the powers of the prosecutor during the inspection (these powers are also possessed by assistants and senior assistants conducting the inspection). In accordance with Art. 21 of the Federal Law "On the Prosecutor's Office of the Russian Federation", the prosecutor has the right:

● upon presentation of an official certificate, freely enter the territory and premises occupied by federal ministries, state committees, services and other federal executive bodies, representative (legislative) and executive bodies of state power of the constituent entities of the Russian Federation, local self-government bodies, military administration bodies, bodies control, their officials, as well as governing bodies and heads of commercial and non-commercial organizations;
● have access to their documents and materials, check the implementation of laws in connection with the information received by the prosecutor's office about the facts of violation of the law;
● require the heads and other officials of the said bodies to submit the necessary documents, materials, statistical and other information; allocation of specialists to clarify the questions that have arisen; conducting inspections on received by the authorities prosecutors materials and appeals, audits of the activities of controlled or subordinate organizations
● call officials and citizens for explanations about violations of laws.

According to Art. 6 of the Federal Law "On the Prosecutor's Office of the Russian Federation" statistical and other information, certificates, documents and their copies necessary for the implementation of the bodies assigned to the prosecutors functions are presented at the request of the prosecutor and the investigator free of charge.

If you refuse to submit documents or fail to appear when summoned to the prosecutor's office, then you will be held administratively liable under Art. 17.7 of the Administrative Code of the Russian Federation.

Pay attention to the power of the prosecutor as to require state bodies to conduct inspections and assign specialists. This means that the prosecutor can direct any inspection organization to you from the fire department and Rospotrebnadzor to the tax inspection.

If, as a result of the prosecutor's check, violations are found in you (and most likely it will be), then, depending on the type of violations, you will be presented with an idea of ​​eliminating violations of the law, or a protest, or a resolution to initiate administrative proceedings will be instituted, it is possible that they will issue a warning about the inadmissibility of violations law.

A protest is brought against a legal act contrary to the law. In your case, this may be an order or some local act that you yourself adopted. The protest is subject to compulsory consideration no later than ten days from the date of its receipt. In exceptional circumstances requiring the immediate elimination of the violation of the law, the prosecutor has the right to establish a shortened period for considering the protest. The results of the consideration of the protest shall be immediately reported to the prosecutor in writing.

In the submission on the elimination of violations of the law, the identified violations are indicated and it is ordered to eliminate them. The submission may ask you to discipline some of your employees. The proposal to eliminate violations of the law is submitted by the prosecutor or his deputy and is subject to immediate consideration. Within a month from the date of submission of the submission, specific measures must be taken to eliminate the violations of the law, their causes and conditions that contribute to them; the results of the measures taken must be reported to the prosecutor in writing.

The decision to initiate administrative proceedings is made in accordance with the rules of the Code of Administrative Offenses of the Russian Federation. Article 28.4 of the Code of Administrative Offenses of the Russian Federation actually allows the prosecutor to initiate a case on any administrative offense, the responsibility for which is established by the Code of Administrative Offenses of the Russian Federation or the law of a constituent entity of the Russian Federation.

The prosecutor's office is the body that oversees the observance of laws in all spheres of public life. The prosecutor has the most extensive powers among all government officials, not counting law enforcement agencies. Therefore, if a particular government agency wants to check an entrepreneur, it often acts in tandem with the prosecutor's office in order to use a wide range of its powers for its own purposes.

The prosecutor's office can also come to an entrepreneur on its own initiative in the event of a planned inspection or conducting an inspection on a complaint from a citizen or other person.

The first are carried out if the prosecutor's office plans, for example, in April to check the observance of labor legislation by entrepreneurs, and in May - the activities of enterprises in the construction industry.

In addition, the prosecutor's office is empowered to form an annual consolidated plan for scheduled inspections of legal entities and individual entrepreneurs conducted by various state supervisory authorities.

The list of organizations in respect of which the inspection is planned for the current year is public. You can check information about your organization in the corresponding service on the official website of the General Prosecutor's Office of the Russian Federation.

Let me remind you that from January 1, 2016 to December 31, 2018, a ban was established on conducting scheduled inspections in relation to small businesses (clause 1 of article 26.1 of the Federal Law of July 13, 2015 No. 246-FZ "").

For unscheduled inspections, a complaint may come from your competitor, a disgruntled customer, or other ill-wisher.

According to the General Prosecutor's Office of the Russian Federation in 2015, 66% of inspections were of an unscheduled nature.

If on the doorstep of your organization there is a person with a prosecutor's certificate, it will be useful to know the following.

• freely enter the territory and premises of any commercial and non-commercial organizations;
• demand from the heads and employees of organizations to submit documents, materials and other data;
• demand the allocation of specialists to clarify the issues that have arisen;
• require audits of the activities of controlled organizations;
• call officials and citizens to get explanations about violations of the law;
• initiate bringing persons guilty of violating the law to administrative and criminal liability (if the prosecutor detects violations that are not related to the subject of the audit, for example, tax, he is obliged to notify the tax inspectorate about them, which in turn will take its own response measures).

The prosecutor has no right:

• interfere in the operational and economic activities of the organization;
• to reclaim unnecessary materials, documents and information that may be obtained by prosecutors directly in the course of an inspection with a visit to the site;
• to impose on organizations the obligation to submit to the prosecutor's office information that is not related to the subject of the audit or goes beyond its limits.

An entrepreneur (head of an organization) is obliged:

• unconditionally fulfill the requirements of the prosecutor within the time period set by him;
• Provide free of charge all the information required by the prosecutor (certificates, documents and their copies).

Consequences of Disobeying Prosecutor's Requirements

Intentional failure to comply with the requirements of the prosecutor conducting proceedings in the case of an administrative offense entails the imposition of an administrative fine on legal entities - from 50 thousand to 100 thousand rubles. or administrative suspension of the organization's activities for up to 90 days ().

Interference in any form in the activities of the prosecutor in order to obstruct a comprehensive, complete and objective investigation of the case is punishable by a fine of up to 80 thousand rubles. or in the amount of wages or other income for a period of up to six months, or compulsory labor for up to 480 hours, or arrest for up to six months ().

A brief procedure for the appearance of a prosecutor (his deputy or assistant) in your office

Invite your lawyer or attorney to provide legal support for the ongoing audit.

Ask an official of the prosecutor's office to present an official ID and explain the subject of the check, present a written document confirming the grounds for the check. In case of refusal to present a document confirming the verification, officially request this document from the prosecutor's office, because according to the Order of the Prosecutor General's Office of Russia dated December 7, 2007 No. 195 "" prosecutor's supervision is carried out publicly, which means that you should have access to all information regarding your verification ... The prosecutor's office considers such requests within 15 days. After receiving the requested document, you can base any complaints about the actions of the prosecutor on it.

It is advisable to organize a video or audio recording of the process of the prosecutor's check.

If the prosecutor requires the submission of documents that are not related to the subject of the check, you can provide these documents, and subsequently appeal against the unlawful actions of the prosecutor through the court, or refuse to provide these documents, and in case of initiation of a case on an administrative offense provided for, prove the illegality of the prosecutor's demands in a court. If the court establishes the existence of a violation on the part of the prosecutor, the court's decision can subsequently be used in another legal process, for example, when appealing against the prosecutor's submission.

If the prosecutor applies to you with an abstract demand for the submission of "all documents", you can refuse it until you receive a specific list of documents required for verification, fixing your refusal in writing with justification of the reasons and notification of your readiness to provide documents after determining a specific circle, or as in the previous case, you can satisfy the demands of the prosecutor and then prepare a complaint about his illegal actions.

It is better to give explanations to the prosecutor on the circumstances related to the subject of the check after consulting a lawyer.

Hand over documents to the prosecutor only according to the inventory.

If it is impossible to submit the requested documents, inform the prosecutor in writing about the reasons preventing the fulfillment of his requirements, and the time frame within which the documents can be provided by you.

If the results of the check have not reached you, use your right - contact the prosecutor's office with a statement to familiarize yourself with the materials of the check.

If the prosecutor issued a representation or warning to you, and you agree with the violations identified by him, eliminate them within the time period specified in the submission, be sure to notify the prosecutor about this event within 30 calendar days.

If the prosecutor issued a representation or warning against you, and you do not agree with the violations he has identified, you can file a complaint with the court. The term for appeal is three months from the day when the person being checked became aware of the violation of his rights. You can try to appeal the submission to a higher prosecutor, but in this case there is a risk of missing the deadline for going to court, so it is better to immediately contact the judicial authorities.

According to the Prosecutor General's Office of the Russian Federation, in 2015, the Prosecutor's Office received 4,412,370 complaints, during the prosecutor's inspections 5,141,906 cases of violations of the law were revealed, of which 1,171,530 were violations in the economic sphere. 163 692 persons were brought to disciplinary responsibility for violation of the law in the economic sphere, 55 839 persons were brought to administrative responsibility, 7800 criminal cases were initiated. Following the instructions in the article will help you stay out of the statistics of the prosecutor's office.

In the next part, I will talk about the features of the inspection carried out by Rospotrebnadzor and consider the most vulnerable places of entrepreneurs in terms of compliance with the requirements of legislation in the field of consumer protection, sale of goods, sanitation and epidemiology.

Yu.V. Kapanina, expert in accounting and taxation

Is it possible to check the organization on the employee's complaint

The court decisions mentioned in the article can be found: section "Judicial practice" of the ConsultantPlus system

The management of the company must live in harmony with its employees. After all, the most “touchy” of them may complain about the employer “where they should be”. And even if the employee is mistaken with the choice of instance, his complaint will be redirected to those bodies that have the authority on his issue. Complaints can be about anything. We will narrow the topic down and talk about delayed payment of wages or benefits and wages in an envelope. What are the implications of such complaints for the organization? Is it possible to check on a tip?

What do employee complaints lead to?

An employee can report a violation of labor legislation by an employer to various state bodies: to the prosecutor's office, to the labor or tax inspectorate, and to extra-budgetary funds.

Government agencies respond to complaints and applications from citizens by conducting inspections of their employers.

ATTENTION

The position of the regulatory authorities: compensation for delayed wages cannot be taken into account in expenses for the purposes of income tax Letter of the Ministry of Finance dated 31.10.2011 No. 03-03-06 / 2/164... But judicial practice on this issue is developing in favor of the taxpayer in Resolutions of the FAS PO dated 30.08.2010 No. A55-35672 / 2009; FAS MO dated 11.03.2009 No. KA-A40 / 1267-09.

If the employee informs about the "salary" problems at the enterprise, the inspectors will most likely require labor contracts, orders for personnel (on hiring, dismissal, transfers), everything related to wages and payments upon dismissals (provisions on bonuses, on allowances or other local regulations), pay sheets, various accounting journals, payroll sheets and other documents as appropriate. And if violations are revealed during the audit, both the company and its manager can be fined.

If it turns out that the employer does not pay wages (or benefits) on time, then, in addition to the delayed wages (or benefits), he will be obliged to pay the employee compensation in the amount of at least 1/300 of the refinancing rate in force during the delay, of the amounts not paid on time NS Art. 236 of the Labor Code of the Russian Federation... The obligation to make such payment arises regardless of whether the employer is at fault. That is, orders to pay salaries later than the deadline (even if they are signed by employees), or the difficult financial situation of the organization, or any other "valid" reasons will not save you from liability. Clause 55 of the Resolution of the Plenum of the Armed Forces dated March 17, 2004 No. 2.

But finding gray salary schemes in a company and proving the fact of their application is quite problematic. After all, supporting documents (for example, unofficial payrolls with unrecorded salaries) will be carefully hidden. And the complaining employee (for example, upon dismissal, he received only the amount specified in the employment contract, and the monthly supplement “in the envelope” is not), most likely, will not have any documents either.

Who can come with a check

Prosecutor's office

Any complaint of an employee can become a reason for a prosecutor's check. That is, the prosecutor's office may be equally interested in both delayed payment of wages or benefits, and shadow wages. In many cities of Russia, on the basis of the prosecutor's office, there are even hotline telephones that receive applications from citizens related to violations of the labor contract and payment of wages "in an envelope".

The Prosecutor General's Office maintains statistics regarding the prosecution of officials (both administrative and criminal) for various violations in the field of wages: Prosecutor General's Office website→ Interaction with the media → News archive of 23 July 2014

When considering applications from citizens, the prosecutor's office has the right to request from the heads of organizations (and other officials) any documents and explanations necessary to resolve issues on complaints e clause 1 of Art. 22 of the Law of 17.01.92 No. 2202-1 (hereinafter - Law No. 2202-1); p. 4.2 Instructions, approved. By order of the Prosecutor General's Office dated January 30, 2013 No. 45... The required documents must be submitted within 15 calendar days from the date of receipt of the request. clause 2 of Art. 10 of the Law dated 02.05.2006 No. 59-FZ.

The prosecutor's office can also conduct an inspection on the territory of the enterprise p. 4.3 Instructions, approved. Order of the Prosecutor General's Office dated January 30, 2013 No. 45; clause 2 of Art. 9 of the Law of 02.05.2006 No. 59-FZ... As a rule, you will find out about this only at the moment of appearance at the office of an employee of the prosecutor's office, presenting an official ID. The prosecutor will not show you any more documents (resolutions, orders, orders) on the beginning of the inspection (and you also have no reason to demand them). The organization is not previously informed about such a check. clause 1 of Art. 22 of Law No. 2202-1.

Since it is not known in advance what was the reason for the check, it will not work to spread the straw. What documents need to be prepared, you will learn only from the inspectors. After all, having come with a check on a specific complaint, the prosecutor can check anything. The only limitation is the availability of the time and desire of the prosecutor himself.

Based on the results of the check, the prosecutor does not draw up an act, as is done when checking by other regulatory authorities. The employer can only wait for the prosecutor's response.

In the event of violations of the law, the prosecutor may:

• bring to the head protest to a local act of organization that contradicts the law Art. 23 of Law No. 2202-1... For example, the manager issued an order according to which the salary is paid once a month. The protest is subject to compulsory consideration within 10 calendar days from the date of its receipt. The company must report the results of its consideration to the prosecutor in writing. This may be an order from the head to cancel or amend a document that has been protested. If the manager does not agree with the protest, then within the same time frame it is necessary to prepare a written reasoned response;
• make performance with the requirement to eliminate the violations Art. 24 of Law No. 2202-1... And they need to be eliminated within a month. The results of the measures taken must also be reported to the prosecutor in writing. In this document, it is necessary to reflect what exactly was done to eliminate violations (for example, wage arrears to employees were repaid);
• take out decree on the initiation of proceedings in the case of an administrative offense under Art. 5.27 of the Administrative Code. Further, for its consideration, the prosecutor's office sends this decision to the authorized body Art. 25, paragraph 3 of Art. 27 of Law No. 2202-1... Cases on violations of labor legislation e h. 1 tbsp. 5.27 of the Code of Administrative Offenses of the Russian Federation are reviewed by state labor inspectors Art. 23.12 Administrative Code of the Russian Federation as well as ships and h. 2 tbsp. 23.1 of the Administrative Code of the Russian Federation.

For violation of labor laws threatens the penalty Art. 5.27 of the Code of Administrative Offenses of the Russian Federation:

• for organizations - from 30,000 to 50,000 rubles;
• for officials and individual entrepreneurs - from 1000 to 5000 rubles.

If executive has already been subject to administrative liability for a similar offense and at the same time, 1 year has not passed since the date of completion of the execution of the previous resolution Art. 4.6 of the Administrative Code of the Russian Federation; nn. 16, 17 Resolutions of the Plenum of the Armed Forces dated March 24, 2005 No. 5 then it can be disqualified for a period from 1 to 3 years.

If this is a repeated similar violation h. 2 tbsp. 5.27 of the Code of Administrative Offenses of the Russian Federation, then in such cases labor inspectors draw up protocols item 16 h. 2 tbsp. 28.3 of the Administrative Code of the Russian Federation, and these cases are considered by the judge and h. 1 tbsp. 23.1 of the Administrative Code of the Russian Federation.

Requirements of the prosecutor arising from his powers Art. 22 of Law No. 2202-1, are subject to unconditional execution within a specified period clause 1 of Art. 6 of Law No. 2202-1... Deliberate failure to comply with them may result in a fine Art. 17.7 of the Administrative Code of the Russian Federation; Resolution of the Arkhangelsk Regional Court dated 03.04.2013 No. 4a-139/13:

• organizations - from 50,000 to 100,000 rubles;
• officials - from 2,000 to 3,000 rubles.

I would like to note that on the received appeals, the check will not necessarily be carried out by the prosecutor's office itself - this can be done by other bodies (for example, the labor inspectorate) at the request of the prosecutor.

Labor inspectorate

If a citizen has written a complaint about violation of his rights to the labor inspectorate, then an unscheduled on-site inspection may be appointed. As a general rule, the labor inspectorate notifies the organization of an unscheduled field inspection at least 24 hours before its start by any available means h. 16 art. 10 of the Law of December 26, 2008 No. 294-FZ... However, if an employee receives an appeal about a violation of his labor rights or about the facts of violations by the employer of the requirements of labor legislation, which entailed the emergence of a threat of harm to the life and health of employees, notifying the employer about the inspection is not allowed. h. 9 art. 360 of the Labor Code of the Russian Federation... Non-payment of wages is considered a violation that poses a threat to the health of the citizen p. 5.3 of the Methodological Recommendations, approved by By order of Rostrud dated 01.24.2011 No. 14... Such an unscheduled inspection can be carried out immediately, without the consent of the prosecutor's office. h. 8 art. 360 of the Labor Code of the Russian Federation.

How to organize work with personnel documentation in order to avoid "labor" fines, read:

During the visit, the labor inspector is obliged to show the employer his service certificate, as well as an order (order) to conduct an inspection. It should clearly establish the subject of the audit and the timing of its implementation.

Having come to an unscheduled inspection, the inspector will check the facts stated in the complaint, since this inspection is the target p. 5.2 of the Methodological Recommendations, approved by By order of Rostrud dated 01.24.2011 No. 14.

FROM AUTHORIZED SOURCES

Deputy Head of the Federal Service for Labor and Employment

“In the event of a complaint from an employee, the subject of an unscheduled check will be the facts of non-compliance by the employer with the requirements of labor legislation in relation to this employee. At the same time, documents related to this particular employee will be checked. Since state labor inspectors do not have the right to demand the submission of documents, information, if they are not objects of inspection or do not relate to the subject of inspection.

If during the inspection the inspector reveals violations that are not related to the subject of the inspection, this may become a reason for initiating another unscheduled inspection. After all, the basis for its implementation may be information (including received from officials of the federal labor inspectorate) on the facts of violations by employers of the requirements of labor legislation, including labor protection requirements, resulting in a threat of harm to the life and health of the employee. "

Here I would like to note that the labor inspectorate is unlikely to be interested in a complaint about a gray salary. Since upon receipt of such information, only this issue will have to be checked. However, as we said above, it is rather difficult to identify and prove such violations. Therefore, the subject of an unscheduled inspection of the labor inspectorate will be to check information about delays in the payment of wages, rather than about wages "in an envelope."

But inspectors can check any time period of the company's activity, not limited to the usual 3 years, and any documents related to labor relations, but only within the subject of inspection.

Based on the results of the inspection, the inspector draws up an act, which indicates the identified violations. An order to eliminate violations, which is subject to mandatory execution, is attached to the inspection act. Failure to do so is subject to a fine under Art. 19.5 of the Administrative Code of the Russian Federation.

WARNING THE LEADER

Failure on time government regulations on the elimination of violations entails a fine Art. 19.5 Administrative Code of the Russian Federation:

• for organizations - from 10,000 to 20,000 rubles;
• for officials - from 1000 to 2000 rubles.

From January 1, 2015 the fine for non-compliance with the labor inspection order make up t clause 5 of Art. 11, paragraph 2 of Art. 15 of the Law of 28.12.2013 No. 421-FZ:

• for organizations - from 100,000 to 200,000 rubles;
• for officials and individual entrepreneurs - from 30,000 to 50,000 rubles.

Also, the labor inspector can fine the organization and the head under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation Art. 357 of the Labor Code of the Russian Federation; Art. 23.12 Administrative Code of the Russian Federation.

Please note that if during the inspection the labor inspector reveals a delay in the payment of salaries to several employees, then this will be regarded as different violations. Resolution of the Armed Forces of 15.08.2014 No. 60-AD 14-11... Let's say a company employs 20 people. Then the total amount of fines may turn out to be rather big - at least 600,000 rubles. (30,000 rubles x 20 violations).

To check the employer's compliance with the issued order, the labor inspector may later come to the organization with an unscheduled check. clause 2 of Art. 10 of the Law of December 26, 2008 No. 294-FZ... Perhaps, if you fulfill the order on time and submit supporting documents to the labor inspectorate, this will save you from the repeated arrival of inspectors.

Tax office

Tax officials have always shown interest in the size of salaries in organizations. Having received information about the payment of wages by the company "in an envelope", the tax authorities did not leave it unattended. p. 5 of the Public Criteria for Risk Assessment, approved. By order of the Federal Tax Service dated May 30, 2007 No. MM-3-06 / [email protected] ... That is, the Inspectorate of the Federal Tax Service will react to the complaint of an employee, but not in the same way as the prosecutor's office or the labor inspectorate. From reliable sources, we learned the algorithm of inspection actions.

Before coming with an audit (or at least including the company in the audit plan), the tax authorities will study the information received. To do this, the inspectorate will call the complaining employee (and maybe other employees of the company) to conduct a survey. Note that the courts often refuse to support tax officials in support of additional charges based only on interrogations of employees of the organization as witnesses. Resolutions of the FAS PO dated 08.08.2012 No. A12-12839 / 2011, dated 05.03.2013 No. A65-18177 / 2012... However, there are court decisions in favor of the inspectors, especially if there is other evidence as well. Resolutions of the FAS MO dated 18.01.2012 No. A40-71623 / 10-111-46; FAS DVO dated 11.04.2012 No. F03-501 / 2012.

The head of the company will be summoned to give explanations to the "salary" commission.

If an employee complains to the Federal Tax Service, then the chances of the organization being checked in this case are significantly increased.

If the company is included in the audit plan, most likely, a comprehensive on-site audit will be assigned for all taxes, and not only for personal income tax.

READER'S OPINION

“A former employee complained about us to the labor inspectorate. The inspectorate summons him with "salary" documents. We pay salaries on time, but the problem is that employees do not always sign on the statements. That is, during the check we will be forced to pay amounts that are not confirmed by signatures. Moreover, they will be fined.
This is what they advise me. If a former employee is ready to refuse a complaint for a certain amount, then it is better to negotiate with such a "blackmailer" than to meet with a labor inspector. After all, checking takes a lot of time and nerves. "

Svetlana,
chief accountant, Moscow region

If the tax authorities reveal and prove that the company did not fulfill its obligations to withhold and transfer personal income tax from the gray salary to the budget, the organization may be charged a fine of 20% of the amount of personal income tax subject to withholding or transfer Art. 123 of the Tax Code of the Russian Federation, and also charge her a penalty Art. 75 of the Tax Code of the Russian Federation.

But in practice, the tax office does not often receive complaints about the payment of gray wages. After all, many people know that for the workers themselves, who receive wages "in an envelope", there is also responsibility. FTS explained a Letter of the Federal Tax Service dated 02.12.2009 No. 3-5-04 / 1774 that an employee who received income from which personal income tax was not withheld is obliged to independently submit an income tax return and pay tax subn. 4 p. 1, p. 4, art. 228, paragraph 1 of Art. 229 of the Tax Code of the Russian Federation... If this is not done, the tax authority has the right to collect personal income tax from the employee, calculated from the unofficial part of the salary, and charge penalties and fines Art. 75, clause 1 of Art. 119 of the Tax Code of the Russian Federation; Art. 198 of the Criminal Code of the Russian Federation.

Will the tax authorities be interested in information about delays in the payment of wages or benefits? Most likely no. The Inspectorate is worried about the receipt of taxes, namely that the personal income tax must be transferred on time. The obligation to transfer personal income tax to the budget arises from the tax agent only after the actual tax deduction from the income paid by the employee to Letter of the Federal Tax Service dated 25.07.2014 No. BS-4-11 / [email protected] ... Therefore, until the salary is paid, personal income tax cannot be paid.

FSS and FIU

Also, inspectors from extra-budgetary funds, who control the payment of insurance premiums, can check with you. After all, paying salaries "in an envelope" means that the company underestimates the base for calculating contributions. Such information will certainly interest the FIU authorities, and it can be taken into account when planning on-site inspections.

FROM AUTHORIZED SOURCES

Deputy Manager of the Department of the Pension Fund of the Russian Federation in Moscow and the Moscow Region

“If the FIU receives a complaint from employees about the payment of wages“ in an envelope ”, this may serve as a reason to include the company in the plan of inspections. In this case, the check is usual, it does not differ from others in the way of carrying out and formalizing the results. At the same time, I would like to note that the Pension Fund of Russia cooperates with the tax authorities in order to identify gray schemes for the payment of wages. And to a greater extent, we conduct checks on this topic with them. "

But the FSS, having received an employee's complaint about non-payment of benefits or its incorrect amount, has the right to conduct an unscheduled on-site inspection (without the participation of the FIU) No. 255-FZ the course of inspections questions.

As a rule, upon receipt of a complaint from an insured person about non-payment of benefits for compulsory social insurance, a thematic check is carried out. ”

They also explained to us what exactly they will check if a thematic check is scheduled.

FROM AUTHORIZED SOURCES

POZDNYAKOVA Irina Vladimirovna

Deputy Head of the Department for Organization of Insurance in Case of Temporary Disability and in Connection with Maternity of the Federal Security Service of the Russian Federation

“When conducting an unscheduled on-site inspection on the complaint of an employee about the incorrect calculation of benefits for compulsory social insurance h. 3 tbsp. 4.7 of Law No. 255-FZ the correctness of the calculation and payment of benefits by the employer in relation to the applied employee or the persons indicated in the complaint is checked. At the same time, the law does not restrict the right of the executive body of the insurer to verify the correctness of the expenses of the insured for the payment of insurance coverage for other employees on this complaint, including during this unscheduled on-site inspection.

Also, this organization can be included in a joint plan of field inspections with the FIU. Art. 33 of the Law of 24.07.2009 No. 212-FZ (hereinafter - Law No. 212-FZ)” .

You may not know about the check in advance, since the FSS authorities are not obliged to notify you.

During the inspection, the supervisors will request all documents related to the payment of benefits. However, the audited period should not exceed 3 years.

Based on its results, an act is drawn up. In the final part of the act, the inspectors indicate proposals for eliminating the identified violations.

If, for example, the FSS during the audit reveals the payment of benefits in a smaller amount, the employer will be obliged to:

• pay in addition the incorrectly paid benefit;
• reflect expenses in the payroll in the form-4 of the FSS for the period in which additional payments will be made par. 16 p. 18 Methodical instructions, approved. By the decree of the FSS dated 07.04.2008 No. 81... At the same time, fine for the delay in the payment of benefits or for their payment in a smaller amount under Art. 5.27 Administrative Code The Fund cannot, this is a privilege of the labor inspectorate.

If, during the audit, auditors from extra-budgetary funds reveal non-payment of insurance premiums due to an underestimation of the calculation base (say, in the case of payment of a gray salary), then the company will have to pay a fine Art. 47 of Law No. 212-FZ... In this case, the amount of sanctions will be 20% of the unpaid amount of insurance premiums. If the inspectors consider that the organization has deliberately underestimated insurance premiums, then the amount of the fine will increase to 40% h. 1, 2 tbsp. 47 of Law No. 212-FZ... In addition, regulatory agencies will charge companies with penalties. h. 1 tbsp. 25 of Law No. 212-FZ.

Even the most experienced accountants are chilled by the word "check". And not only because of the fear of finding errors, but also because of the huge volume of documents that need to be prepared for the inspectors within a certain period of time. If your boss tells you, for example, that there is a delay in wages this month, tell him about the consequences of not complying with labor laws.

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How to write a statement

In Russian legislation, there are several regulations governing the procedure for citizens and legal entities to apply to the Prosecutor's Office to initiate an audit. The main law in this area is Law No. 59-FZ of May 2, 2006 "On the Procedure for Considering Citizens' Appeals ..." (hereinafter - Law No. 59-FZ).

Note! It is worth knowing that there is no specific model for a complaint to the Prosecutor's Office. This applies to both applications from citizens and legal entities. But there are certain requirements for the statements of firms and companies, enshrined in the Order of the Prosecutor General's Office of the Russian Federation from number 45 (hereinafter referred to as the Instruction).

There are no uniform requirements for the application, but over time, rules have been developed regarding the form and content of the application:

• In the upper right corner, you must write: where are you applying, i.e. full name of the supervisory authority, address of its location. Slightly below the passport data of the person who applies (full name, address of residence), as well as the applicant's phone number are indicated;
• Slightly below the contact information in the center of the sheet, you need to indicate the name of the appeal (for example, "Application", "Appeal for verification", "Complaint", etc.);
• Further, it is necessary to logically and consistently state the essence of the problem, the violated rights, as well as the contact details of the person who committed the misdemeanor or offense;
• At the end it is important to make a note about what kind of reaction you want from the authorized persons Procurators;
• The registration of the application to the supervisory authority is completed by affixing the date and signature of the applicant (with a transcript).

ATTENTION! Look at the completed sample application to the Prosecutor's Office for an inspection:

Requirements for an application for a prosecutor's inspection

Many are afraid to apply to the Prosecutor's Office with a complaint, because they think that due to possible errors, their application will not be accepted. In fact, this is a myth. Unlike a lawsuit in court, it is not difficult to draw up an appeal to this supervisory authority.

When drawing up a statement, the following facts should be taken into account:

• the application will not be accepted by an authorized person of the Prosecutor's Office if it does not bear the applicant's signature;
• if you want your appeal to be considered with the subsequent verification of the offender, then be sure to indicate all your contact information;
• the complaint will also not be considered if you are unclear about the essence of the problem;
• it is better to state the essence of the violation briefly;
• refusal to conduct an inspection is guaranteed when you file a repeated complaint, i.e. if you have previously applied to the Prosecutor's Office in connection with the same check;
• appeals to this supervisory authority are not considered if they contain insults and profanity.

Reasons for contacting the Prosecutor's Office

An employer's violation of labor laws is a common reason for contacting the Prosecutor's Office for an inspection. The most often violated are: the work and rest regime, the procedure for the payment of wages and other norms of the Labor Code of the Russian Federation. It is with such problems that employees send complaints to supervisory authorities.

Another popular topic for appeals to initiate a prosecutor's check is the inaction of the authorities and authorized persons (for example, when contacting the Police, bailiffs, local administrations, etc.). If necessary, the check will be carried out even if the terms of consideration of the appeal to the executive authorities are delayed.

Know! The prosecutor's office will simply be obliged to respond to the complaint, understand the situation and bring the perpetrators to justice if a violation of the law is found.

Any citizen whose rights have been violated has the right to write an application to the Prosecutor's Office. For example, offenses in the field of education, trade, medicine. The Constitution of the Russian Federation guarantees each of us not only the observance of rights, but also their protection.

But before resorting to extreme measures of the proceedings, it is worth first trying to resolve the issue "on the spot." For example, if the rights of a consumer have been violated, then it is necessary to write a claim directly to the trade organization and wait for a response. In most cases, the management does not need hype and prosecutorial checks, so it meets the needs of the buyers of its store.

The reason for a complaint to the Prosecutor's Office may be not only violations of rights by specific actions, but also unlawful inaction, which entailed consequences in the form of violation of human rights. For example, when the investigating authorities deliberately delay the proceedings in one of the cases or do not react at all to your appeals.

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The procedure for filing an appeal

Where to send the appeal, if it has already been drawn up and signed:

• The first and most practical is a personal visit to the Prosecutor's Office of your city. Print or write two copies of the verification initiation statement in advance. One of them will be taken by an authorized employee of the Prosecutor's Office, on the second he will put a mark on acceptance and give it to you. Such a mark is needed if a higher supervisory authority has to prove the fact of the appeal;
• If for some reason you are unable to bring your complaint in person, you can send it by mail. Before that, it is advisable to visit a notary and certify the application and all attached documents. Be sure to choose to be sent by registered mail with acknowledgment of receipt. In this case, after receiving the appeal, you will receive a notification that your application has been received. It will have a mark on who received the letter and when. Pay special attention to the date the application was submitted to the Prosecutor's Office. It is from this moment that the deadlines for the supervisory authority of the state power must give you an answer;

• The last and fastest way is to send an application to the Prosecutor's Office through the application form on the official website. Do not forget to include your contact information to receive a response to the decision.

Watch the video. How to file a complaint with the Prosecutor's Office correctly:

How the document is considered in the state structure

The procedure for considering complaints and appeals of citizens is regulated by Article 9 of Law No. 59-FZ "On the Procedure for Considering Appeals of Citizens of the Russian Federation", as well as Article 21 of the Federal Law "On the Prosecutor's Office of the Russian Federation" dated January 17, 1992, N 2202-1 (hereinafter - Law on the Prosecutor's Office).

Based on the interpretation of these norms, it can be concluded that if it is impossible to establish the truth on the basis of the data specified in the application, the Prosecutor's Office is obliged to verify compliance with the legislation of the Russian Federation. The basis for such verification will be the fact of violation of human rights indicated in the complaint.

The general rules for conducting an inspection are enshrined in the law on the Prosecutor's Office. The specifics of actions are interpreted in the Instruction of the Prosecutor General's Office, which we talked about above.

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Who decides on the need for verification? After receiving the complaint, the authorized persons study the presented facts of violation, establish the sequence of actions. Only the prosecutor or his deputy can make the final decision to initiate an inspection.

The decision to conduct an inspection is always made in writing and contains:

• the purpose of the audit;
• grounds for the inspection;
• subject of verification.

The standard form of such decisions has been approved at the legislative level. It was approved by order of the General Prosecutor's Office of March 17, 2017 under number 172. The rules for sending a response decision to the applicant are enshrined in Art. 10 of the Law on the Prosecutor's Office.

It says that the answer should include:

• information about the results of the prosecutor's check and the adopted decision;
• the measures that were taken on the basis of the citizen's appeal.

In addition, Article 9 of Law No. 59-FZ gives the right to the person or state authority that has received the complaint to consider it on site.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any questions.

How is the audit carried out according to the law

The rules for conducting a prosecutor's verification are governed by Article 21 of the Law on the Prosecutor's Office:

• If, at the time of the inspection, new undeclared offenses are revealed, the prosecutor makes a new decision to expand its circle or to appoint a new inspection;
• If the inspected object has several subdivisions on the territory of different constituent entities of the Russian Federation, then in relation to each branch a separate decision is made to conduct an inspection. Timing also starts and ends flowing differently for divisions;
• By virtue of the law, the total inspection period cannot exceed 30 working days. During this time, these events may be suspended for various reasons;
• Based on the results of the check, the prosecutor always makes a definite decision. If violations are identified, appropriate measures are taken, if not, an act on the absence of violations of the law is drawn up.

What are the terms of consideration of the document

Note! There are two types of time limits within which the Prosecutor's Office must consider a complaint: general and shortened.

The processing time depends on a number of factors:

• completeness of information in the application;
• the need for verification;
• the need to involve witnesses;
• the need to send requests and carry out a number of other actions.

The general term for consideration of citizens' complaints is 30 days. If necessary, this time period can be doubled, i.e. up to 2 months. This may be due to the verification of the information by the Prosecutor's Office. But such an extension is possible only at the request of the prosecutor in charge of the case, or his deputy.