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By the pre-trial detention center: businessmen want to be less likely to be jailed for economic crimes

By the pre-trial detention center: businessmen want to be less likely to be jailed for economic crimes

The Ministry of Justice has developed bill, designed to protect businessmen from excessive pressure from law enforcement officers. It is proposed to ban the arrest of entrepreneurs for economic crimes of minor gravity, reduce the investigation time by half and strengthen control by the prosecutor's office. The changes will not affect those, who has already been arrested and is waiting for the end of the investigation in the pre-trial detention center, but when extending the term, the court will have to be guided by the new rules.

Amendments to the Criminal Procedure Code of the Russian Federation (Code of Criminal Procedure) developed as part of systemic measures, aimed at eliminating excessive criminal law impact on Russian entrepreneurs. In particular, the bill establishes, that in cases of economic crimes of minor gravity, the courts should prescribe to the defendants mainly such preventive measures, that are not related to detention. This will allow entrepreneurs to continue doing business and not ruin the company.. Arrest should be applied to those, who already tried to hide from the investigation. To apply to the court for the detention of the accused or suspect, investigators will have to obtain the consent of the prosecutor.

The maximum period for investigating such crimes is proposed to be reduced from one year to six months., so that the delay in investigative actions does not harm the business. It's right there in the new section. 8.4 articles 109 Code of Criminal Procedure: the need for further investigative actions cannot act as the only and sufficient grounds for extending the period of detention.

The draft law has been published by the Ministry of Justice for public discussion and, after agreement with all interested parties, will be submitted to the State Duma.

Dynamics of economic crimes

The bill was developed on behalf of the President of the Russian Federation. This year, Vladimir Putin has repeatedly spoken out in favor of granting more freedom to business in the current conditions of sanctions and in favor of liberalizing the criminal law up to the abolition of criminal prosecution for economic crimes.

Earlier, the chairman of the Public Monitoring Commission of Moscow Georgy Volkov told, that the number of entrepreneurs in the capital's pre-trial detention center has reached a record 15% from all prisoners. At the same time, the number of women among them increased.. According to him, they are united by a "rubber" h. 4 Art. 159 CC RF ("Fraud on a large scale").

According to the Ministry of Internal Affairs, for January–July 2022 the number of economic crimes is insignificant (-0,1%) decreased compared to the previous year and amounted to 78,2 thousands. The material damage from them reached 218 RUB billion. In the total number of such crimes, grave and especially grave crimes occupy more than 62%. More than 23 thousands. (+5,4%). If we single out fraud (21 outside.), then the growth will be 10%, and more than half of them 12,8 thousands. (+18%) - constitute crimes on a large and especially large scale.

No retroactive effect

Economic crimes are not related to violence and, usually, do not pose too great a public danger, explained a member of the Council of the Federal Chamber of Lawyers (FPA) Russian Federation Tatiana Protsenko. Detention of an entrepreneur in custody at the stage of preliminary investigation and trial, when his guilt has not yet been established, is an excessive measure. At the same time, not only the suspect suffers from its use., but business in general. The detention of the head of the company in most cases leads to a complete halt of the enterprise, what do workers suffer from?, counterparties, suppliers and buyers. As a result, this has a negative impact on the entire business..

The current version of the Criminal Procedure Code of the Russian Federation already contains a ban on the arrest of defendants in cases under a number of "entrepreneurial" articles of the Criminal Code, but the bill clarifies the grounds for applying this measure, taking into account the gravity of the incriminated act.

“The practice of application has shown, that the investigators in the application for the choice of a measure of restraint in the form of detention often simply indicate, that the incriminated act is not related to entrepreneurial activity, thus circumventing the ban on the arrest of businessmen. The bill establishes the duty of the investigator not only to indicate the grounds for detention, but also to back them up with concrete evidence.”, - emphasized Protsenko.

She explained, that when the amendments are adopted and the changes come into force, their effect does not apply to those, who has already been arrested and is in jail. In accordance with Art.. 4 Code of Criminal Procedure of the Russian Federation, the chosen measure of restraint will remain until the end of the period of its application, established by the court. However, if this period is extended, the investigator and the court will have to be guided by the new rules..

In new realities - new laws

The initiative is supported by the expert community, and State Duma deputies. The idea of ​​decriminalizing part of the elements of economic crimes has long been actively discussed, including. at the site of the Chamber of Commerce and Industry of the Russian Federation, said Anatoly Vyborny, deputy chairman of the State Duma Committee on Security and Anti-Corruption ("United Russia").

"Important, that investigators will be required to coordinate with the prosecutor's office petitions for the arrest of businessmen. This will enable prosecutorial control at the stage, when the violation of the rights of the suspect has not yet occurred, that is, the control will be preliminary, not after the fact", he explained.

The same applies to the reduction of the investigation time - investigators must have serious grounds for sending an entrepreneur to a pre-trial detention center, and the case should go to court as soon as possible.

According to Anatoly Vyborny, the proposed measures will have a positive impact on the economic situation as a whole, and to improve the morale of entrepreneurs. Against the backdrop of sanctions, their lives have become much more complicated.: many additional features and, so that the existing stringent requirements in the new realities, but under the old laws did not turn into serious problems, required adjustment of many legal issues - for example, with registration of licenses and customs payments.

Now it's up to, how responsibly the law enforcement officer will approach the implementation of new norms, emphasized elected. “At the level of legislation, we are taking decisive steps, to minimize vague norms, remove loopholes and reasons for pressure on entrepreneurs,” he says. These initiatives fit well with this strategy., aimed at strengthening the legal protection of entrepreneurs, suppression of unreasonable criminal prosecution and illegal pressure on business, prevention of a number of corruption crimes in law enforcement agencies, considers elected. “After all, we have repeatedly encountered court decisions, in which the court stressed, that the investigator confused civil law relations with those, that have criminal consequences. With the adoption of the projected novels, such cases will become a thing of the past., – a confident MP.

Still a long way from practice

The initiative of the Ministry of Justice launched a new round of organizing the protection of business from excessive force pressure, says Ekaterina Avdeeva, head of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts of Business Russia. However, innovations will not change law enforcement practice immediately and radically.. It is necessary to provide for a comprehensive modernization of the criminal law policy while maintaining the already well-established tools, as well as to create really working mechanisms of law enforcement practice.

“We should not get too carried away with the liberalization of criminal legislation, we must ensure an independent investigation without pressure", - Avdeeva emphasized.

The adjustments proposed by the Ministry of Justice are intended to have a deterrent effect and should not be based on frequency criteria, but on the degree of public danger. This undertaking requires an integrated approach both in terms of qualification, as well as in terms of organizational measures.

Herewith, noted the expert, the discussion should take place exclusively with the participation of law enforcement officers and other interested public authorities, key institutions for the protection of entrepreneurs and the country's largest business associations to develop balanced solutions. It is this composition of stakeholders that will be able to develop comprehensive initiatives, that will improve the business climate and minimize the risks of unjustified criminal prosecution.

Supporting the general trend of liberalization, Ekaterina Avdeeva nevertheless expressed concerns about the actual application and predicted effectiveness of innovations. “The initiative of the Ministry of Justice is of global importance in improving the protection of an entrepreneur under investigation, but at the same time, I really want to see those solutions, which will begin to erase negative trends in practice - provided, that they are connected with real economic activity and the entrepreneur does not pose a threat to public safety”, - summed up the expert.

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