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Business Duty Officer

Expert: the system a priori considers merchants to be crooks

Expert: the system a priori considers merchants to be crooks

The business community continues to insist on the mitigation of criminal procedure legislation in relation to business. The situation in this area has improved in recent years., However, several key issues remain unresolved..

The situation in the field of developing a system of interaction between entrepreneurs and control and supervisory authorities is far from ideal. Measures to relax criminal procedure laws in relation to fair business do not always work.

This was discussed the day before by the participants of the round table "Protection of business in the face of new challenges and tasks", held within the framework of the forum "Russian Industrialist". Elina Sidorenko, General Director of ANO "Platform for Entrepreneurs' Applications", took part in the event, State Secretary - Deputy Minister of Economic Development Alexey Khersontsev, Deputy Head of the United Russia faction in the State Duma Sergei Morozov, President of the Russian Union of Industrialists and Entrepreneurs Alexander Shokhin.

Speaking at the round table, Alexey Khersontsev told, what is the past period 2022 more than 7 thousands of complaints about the actions of control and supervisory agencies. "Of these, almost 4 thousands. complaints are petitions for an extension of the period for consideration of orders based on the results of a control and supervisory measure. 2735 complaints were satisfied. 3354 complaints are disagreement with the actions of controllers. It also has a very high satisfaction rate.: 33,3% all applications considered on the merits were fully or partially satisfied. Complaints are dealt with as soon as possible, almost two times lower than the standard, he noted.

According to the head of the RSPP, under sanctions pressure, the issue of humanization of criminal legislation, how to ensure a safe business environment, is very sharp. “At this year’s SPIEF, Russian President Vladimir Putin spoke about the easing of criminal legislation in relation to business entities. The instructions of the president dealt with the full or partial decriminalization of certain acts in the field of entrepreneurial activity, priority of election in relation to entrepreneurs of measures of restraint, that are not related to detention", — said Alexander Shokhin.

He added, that a number of RSPP proposals were not taken into account when preparing the relevant legislative changes. "So, proposals for the introduction of agreements with the prosecution authorities when taking into custody were not taken into account, the issue of consideration of the extension of detention by a higher court, limiting the time of detention, - complained the president of the RSPP. Besides, According to him, courts almost never use such a humane measure of restraint as bail. measure, meeting business aspirations, Alexander Shokhin named exemption from liability in connection with damages.

Entrepreneurs use law enforcement to fight each other
Business lives under constant pressure, confirmed in an interview with the correspondent of "Expert" managing partner Tomashevskaya & Partners Zhanna Tomashevskaya. And the attitude of law enforcement agencies often discourages entrepreneurs from doing something.. “We often have surreal situations, when an entrepreneur can receive gratitude from the president of the country and a criminal case for the same thing, because the state, in the role of a functional customer, needs a project and is useful, and the state in the form of a controller is not useful”, she pointed out.

The system is built like this, that businessmen are a priori read by swindlers and swindlers. Respectively, with this approach, there are no problems in choosing methods of interaction with them. For iexample, in the eyes of the system, there is nothing wrong with a search or interrogation, especially if this was not followed by an arrest, notes the lawyer. For entrepreneurs, this can have a significant impact on business processes - key employees may leave the company, negative PR will affect sales, expert warned.

An even darker side of law enforcement pressure on entrepreneurs is the entrepreneurs themselves., who use law enforcement agencies to put pressure on each other, added Zhanna Tomashevskaya. So, to change it, need to rebalance. First of all, the judiciary. This will reduce the effectiveness of the shadow struggle and encourage entrepreneurs to sort things out among themselves in independent courts.. Also, independent courts will be able to correct the excesses of the law enforcement system..

If we compare then, what happened five years ago, and about, what is now, then of course, there are positive changes, the lawyer pointed out in a comment to "Expert", Head of Saunin Law Practice Andrey Saunin. But the business itself has changed., many players came, who have more knowledge about their rights. According to trustees, they think three times, before you go yourself to law enforcement, and at the slightest suspicion, they will seek advice from specialized specialists. When choosing a measure of restraint, house arrest or other measures not related to the restriction of freedom are increasingly being established..

On the other hand, on fundamental issues, the situation remained the same. This is the "rubber" composition of fraud, and complex unfinished and systematically changing tax rules. As before, the rights of those brought and detained to meet with lawyers are violated, many are held without registration of procedural documents for several hours, under constant pressure from law enforcement, stated the lawyer.

According to Andrey Saunin, remains "ineffective" judicial review of the actions and decisions of law enforcement agencies on the initiation or refusal to initiate criminal cases, ORM, investigative actions. Courts have the option not to consider the substance of the charge, referring to the discretion of law enforcement officials.

Law enforcement compass gone astray
Historically, the pressure on the commercial sector is a natural reflection of the rapidly changing state policy both at home and abroad., as well as in foreign arenas, lawyer told "Expert", Alexey Novikov, managing partner of the Criminal Defense Firm. So, There are many legal problems, associated with obsolete norms. As of autumn 2022 the situation in Russia, when annual inflation is considered a normal economic phenomenon.

At the same time, economic criminal cases, which are everywhere initiated by the investigating authorities, most clearly show, that the “compass” of the law enforcer in terms of determining the actual amount of damage caused has inevitably gone astray. The practice of defense in criminal cases in the field of economics shows, which is often very large 1 million rubles is not uncommon in cases of this kind.

Usually, according to the investigation, especially large damage is caused by the majority of entrepreneurs, accused under economic articles, as evidenced by the statistics, stressed lawyer. Obviously, that the imperfection of the legislative system directly violates the rights of businessmen, contributes to their prosecution.

Practice shows, that "popularity" among law enforcement officers is gaining tax crimes. At the same time, the current problem of tax crimes has not lost its relevance over the past few years. 15 Years. Number of crimes, committed in the tax area, continues to grow from year to year, which are confirmed by recognized experts in this field.

Aleksey Novikov attributed several significant factors to the reasons for this growth., among which the lack of proper control over unrecorded cash turnover is highlighted, low efficiency of tax amnesties and capital amnesties, high percentage of shadow employment, as well as the low level of interaction between the investigative and tax authorities in identifying, suppression and investigation of criminal cases on tax structures.

Besides, the problem of detention of businessmen has been raised for many years. They talk about it like entrepreneurs, facing criminal prosecution, and professional lawyers. The law enforcement of this institution includes a considerable number of examples, when the organ of justice, for reasons known only to it, considers, that the criminal offense was not committed in the field of entrepreneurial activity, in connection with which detention is more than possible. Undoubtedly, says Alexey Novikov, subsequently, the preventive measure may change to house arrest, but this doesn't happen very often., mainly at the request of the investigation and with the support of the prosecutor.

The adoption by judges of “doubtful” decisions by their legal nature has not surprised experts in the field of criminal and criminal procedure law for a long time.. According to the lawyer, that such a situation has arisen, among other things, because, that the current Russian practice does not yet know cases of prosecution of investigators, judges or prosecutors for knowingly unlawful confinement or detention under article 301 CC RF.

So, to change the current situation in terms of unlawful detention and other issues, pressure on business, federal law needs to be changed., sure Alexey Novikov. It is also necessary to tighten the possible liability for officials, empowered to make such procedural decisions. Sometimes only the risk of being held accountable can convince them to reconsider their views on certain actions..

A systematic approach to business protection is needed
The main problems are not related to the lack of any laws or presidential orders, and with that, how the current regulations are applied, admitted in a commentary to "Expert" the chairman of the bar association "Your Legal Attorney" Konstantin Trapaidze. So, the main problem is, that the courts record illegal actions and pass sentences on cases, in which there are actually no grounds for criminal prosecution.

The initiation of criminal prosecution in Russia almost always leads to a guilty verdict., acquittals in the existing system, the courts almost do not endure. Respectively, points out the lawyer, with such shortcomings in the law enforcement system, entrepreneurs cannot feel protected from criminal prosecution, since power pressure is often used in various kinds of economic conflicts.

The Delovaya Rossiya Expert Center on Criminal Law Policy and Enforcement of Judicial Acts also fixes the problem of unjustified criminal prosecution of business. According to the survey, more than 50% of respondents faced problems of power pressure. In particular, there is an acute issue of refusal to initiate criminal cases, if unlawful acts have been committed against entrepreneurs or their companies, told "Expert" a member of the General Council of the organization, Head of the Expert Center,ambassador “business officer” Ekaterina Avdeeva.

According to her, There are currently no legal definitions, which are so necessary for the uniform application of criminal law in terms of the protection of entrepreneurs and the observance of guarantees, provided for this category of persons. For iexample, law enforcers face a "truncated" definition of the scope of entrepreneurial activity, which often leads to qualification of crimes, accomplished in the economic sphere, on general criminal offenses.

Besides, continued Ekaterina Avdeeva, appeals indicate difficulties in identifying and investigating the so-called raiding, that is, the use of civil law mechanisms for the bankruptcy of the company and the subsequent "hostile" takeover.

One of the important prerequisites for unjustified criminal pressure on business, one side, is the biased attitude of the investigators. On the other hand, there is an incompletely formed vector of legal behavior of entrepreneurs themselves after the remnants of the criminal 1990s.. A relatively short period of a market economy and the development of entrepreneurship after the planned economic model has not yet made it possible to adequately form the vector of legal behavior of entrepreneurship, which would take into account all the requirements of the regulatory and normal civil circulation, provided for the proper level of legal literacy.

According to Ekaterina Avdeeva, often, despite the relatively large number of protection institutions, there is a duplication of functions and an increase in the burden on the prosecutor's office, in which the vast majority of complaints fall.

To solve the problem of forceful pressure on business, a centralized system for organizing the protection of the rights of business entities is required, which would allow developing a consolidated position and legislative initiatives, and to coordinate the uniform direction of the human rights capacity of all bodies, including law enforcement. Important, noted Ekaterina Avdeeva, that entrepreneurs perform socially significant functions, and today they have additional tasks, related to the solution of global issues and challenges, facing the economy.

In this regard, it is critically important to ensure the security of the business, which will have a tremendous effect on the economic sovereignty of the state, strengthening and development of the domestic economy. It is a systematic approach that will allow not pointwise “patching” the legislation, and take comprehensive measures. At the same time, it is important to consider the issue of including the organization of the protection of the rights of entrepreneurs in the course of investigating crimes in the criminal law policy., concluded the expert.

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