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The Ministry of Justice proposes to ban the imprisonment of entrepreneurs for crimes of small and medium gravity

The Ministry of Justice proposes to ban the imprisonment of entrepreneurs for crimes of small and medium gravity

The draft amendments to the Code of Criminal Procedure provide for the priority of the court applying a different preventive measure against businessmen, enabling them to continue their business.

One of the lawyers noted, that for a qualitative increase in the organization of protection of the rights of business entities, it is necessary, so that the legislator takes into account precisely the most frequently sane compositions. Another stressed, that in the event of illegal criminal prosecution, entrepreneurs are at particular risk. third noted, that the amendments are positive, however, the question is, how responsibly law enforcers will approach their implementation. The FPA supported the bill, noting, that a more adequate attitude towards entrepreneurs on the part of law enforcers can significantly and favorably affect the economic situation of the country.
18 August, the Ministry of Justice of Russia presented to the public discussion of the draft amendments to the Code of Criminal Procedure of the Russian Federation, aimed at expanding the guarantees of persons, suspects (accused) in committing crimes in the sphere of entrepreneurial and other economic activities.

The explanatory note notes, that the draft law was developed based on the need and relevance of the implementation of systemic measures in the Russian Federation, aimed at eliminating excessive criminal law impact on entrepreneurs.

The amendments clarify the grounds for choosing a measure of restraint in the form of detention in respect of business entities and members of the management bodies of commercial organizations, taking into account the gravity of the incriminated act. So, offered, that the choice of a measure of restraint in the form of detention in respect of a person, suspect (accused) in the commission of crimes of small and medium gravity in the field of entrepreneurial and other economic activities, can only be applied in cases, when this person violated a previously chosen measure of restraint, tried to hide from the preliminary investigation authorities or from the court.

According to the amendments, when considering a petition for choosing a preventive measure in the form of custody, the court is obliged to find out the possibility of applying another measure in relation to the specified category of persons., enabling them to continue their business activities. Another preventive measure should also allow the entrepreneur to manage his property, used for business purposes, as well as to carry out activities for the management of the organization.

The project specifies, what information should contain the decision to initiate a petition for the election of detention in respect of suspects as a measure of restraint (accused) at. 1-4th century. 159, Art. 159.1–159.3, 159.5, 159.6, 160, 165 and 201 CC RF. So, this information must be confirmed, that the alleged act was committed not in connection with the suspected (accused) entrepreneurial activity and (or) management of his property, used for business purposes. This information may also indicate, that the incriminated act is not related to the exercise of authority to manage the organization or to the commercial organization's entrepreneurial or other economic activities. Appropriate amendments are proposed to be made to Art.. 108 Code of Criminal Procedure.

The draft law also introduces the need for the investigator to obtain the consent of the prosecutor to initiate a petition before the court for the election of a measure of restraint in the form of guards against persons, suspects (accused) in committing crimes in the sphere of entrepreneurial and other economic activities.

Planned, that the period of detention of business entities and members of the management bodies of commercial organizations in criminal cases on crimes, listed in h. 1.1 Art. 108 Code of Criminal Procedure, over 6 Months, can be extended up to a year only if the case is particularly complex. At the same time, there must be grounds for choosing this measure of restraint by the judge at the request of the investigator., made with the consent of the head of the relevant investigative body for the constituent entity of the Russian Federation, another head of the investigative body equated to him and the prosecutor of the constituent entity of the Russian Federation or a military prosecutor equated to him. TBA, that the period of detention is over 12 months may be extended to one and a half years in respect of the specified persons, accused of committing particularly serious crimes, listed in h. 1.1 Art. 108 Code of Criminal Procedure, only in exceptional cases.

According to the draft law, the need for further investigative actions cannot act as the only and sufficient basis for extending the period of detention.. As the authors of the amendments point out, this rule is introduced in order to exclude cases of extension of detention in case of inefficient organization of the investigation.

It also provides for a reduction in the maximum period of preliminary investigation for crimes., listed in h. 1.1 and 1.2 Art. 108 Code of Criminal Procedure, with 12 to 6 Months.

“The adoption of the draft law will expand the guarantees of persons, suspects, accused of committing crimes in the field of entrepreneurial and other economic activities, in the course of criminal prosecution", - emphasized in the explanatory note.

We have to note,, that 18 On August, the XVII Meeting of the Chairmen of the Supreme Courts of the Member States of the Shanghai Cooperation Organization was held in Dushanbe, where Chairman of the Supreme Court of the Russian Federation Vyacheslav Lebedev spoke. “Russian courts favorably treat entrepreneurs prosecuted, and the Supreme Court of Russia came up with a number of legislative initiatives to protect businesses from excessive pressure from the security forces”, he emphasized.

Ekaterina Avdeeva, Head of the Expert Center for Criminal Law Policy and Enforcement of Judicial Acts of Delovaya Rossiya, positively assessed the initiative of the Ministry of Justice to prohibit the choice of a measure of restraint in the form of detention against a person, suspect, accused of committing crimes of small and medium gravity in the field of entrepreneurial and other economic activities. In addition to this, in her opinion, at this stage, the initiative is more of a "decorative" character. “The department is trying to fulfill the order of the President of the Russian Federation, which was aimed at real help to business, and we support this active work. At the same time, entrepreneurs are mainly charged with the compositions, which are classified as serious crimes. So, have to admit, that entrepreneurs are still most often accused of. 3 and 4 Art. 159 CC. For comparison, at. 1 Art. 159 UK in 2021 y. was condemned 2820 people, while by the hour. 4 Art. 159 Read – 3311, and by h. 5-7th century. 159 UK – 143», – she pointed out in the comment “AG”.

Ekaterina Avdeeva added, that the prevailing majority of the incriminated acts belong precisely to the category of grave and problematic, related to the choice of a measure of restraint, according to the statistics of appeals to the commissioners for the protection of the rights of entrepreneurs, applies to these compounds..

The lawyer drew attention, what on h. 4 Art. 159 The Criminal Code produces the most acquittals among the offenses against property (49 in 2021 Mr.). “An entrepreneur can lose years of life in a pre-trial detention center, lose business, which means hundreds of people will lose their jobs., the budget will not receive funds, but in the end it will be proved, that the entrepreneur is not guilty of the alleged crime”, – shared Ekaterina Avdeeva.

Regarding the reduction of the investigation period, the lawyer noted, that is important not only time, but also the quality of the process. If the investigation period is shortened, the objectivity and completeness of the investigation with a high degree of probability can be significantly reduced; the process of returning criminal cases to the prosecutor with subsequent additional investigation will be more actively exploited. "Necessary, that the Ministry of Justice work with law enforcement officers with the participation of business associations and institutions for the protection of the rights of entrepreneurs, to jointly identify the main problems of entrepreneurs in the course of investigating crimes and design legislative initiatives taking into account the balance of private and public interests, while providing solutions to problems", lawyer commented..

According to Ekaterina Avdeeva, for a qualitative increase in the organization of protection of the rights of business entities, it is necessary, so that the legislator takes into account precisely the most frequently sane compositions. The lawyer noted with regret, that the thresholds for classifying an act as a serious offense, provided for by the most common article in relation to entrepreneurs - Art.. 159 CC, extremely small for any economic activity, As a result, almost every entrepreneur, turned out to be a suspect, suspected of committing a serious crime.

“Changes in the trend of taking entrepreneurs into custody for a less severe measure of restraint can be achieved either by creating prerequisites for reclassifying such acts according to. 5-7th century. 159 CC, or an imperative ban on the detention of entrepreneurs, who are accused and suspected of non-violent crimes. To date, none of these measures has been included in the bill.. Of course, I would like to see the expansion of this measure to serious offenses, but on condition, if they are connected with real economic activity and the entrepreneur does not pose a threat to public safety”, - summed up the lawyer.

Lawyer of the Arkhangelsk Regional Administration Aleksey Sinitsyn believes, that in the event of illegal criminal prosecution, entrepreneurs are at particular risk. “Sometimes an entrepreneur is involved in a fabricated case, then to extort money. Sometimes he is placed in custody on a "custom" case, to seize his business. In this regard, the detention of the entrepreneur (on "economic" items) carried out only in exceptional cases: does not have a permanent place of residence in Russia, not identified, a previously chosen measure of restraint has been violated, fled from the investigating authorities and the court ", he explained.

The lawyer drew attention, that the procedure for choosing the most severe preventive measure against entrepreneurs has been repeatedly changed and specified in recent years. However, the problem, related to the use of criminal prosecution and detention as an instrument of pressure on business, has not disappeared.

“The bill provides for a tangible complication of the procedure for choosing and extending a measure of restraint in the form of detention in relation to entrepreneurs, and, Maybe, this will increase the level of their legislative protection. But if the entrepreneur receives an “order”, the case may be initiated not under the “entrepreneurial” article or exceptional grounds for detention may be imputed. Therefore, the problem of unlawful criminal prosecution in general and unjustified arrests in particular must be addressed at a deeper systemic level.”, - says Alexei Sinitsyn.

A lawyer, Mikhail Kiriyenko, head of criminal practice at JSB KRP, noted, that the proposed amendments are positive, however, the question is, how responsibly law enforcers will approach their implementation.

According to the lawyer, of all the proposals, changes in the regulation of the terms of the investigation and their extension can really affect the actions of the investigating authorities. “The centralization of control at the federal level will influence the approach of investigators to justify their actions and decisions, however, it seems, that there will always be arguments about the incompleteness of examinations, failure to detect or the need to interrogate witnesses and victims, etc.. But it's still a good move.", - says Mikhail Kirienko.

Regarding preventive measures, the lawyer emphasized, that this has long been pointed out as the President of the Russian Federation in messages, and the Supreme Court in clarifications, however, the situation with the frequency of election of guards has changed slightly for the better.

“This part of the situation may change., is unfortunately, only for the first time after the adoption of the amendments, but there is a risk, that after that everything can return to the previous format, since the argument about the need to conduct investigative actions can always be supplemented by an indication of the possibility of the suspect (accused) hide from investigators, put pressure on other participants, etc.. In this part, a tough position of higher courts is needed when revising court decisions on the election and extension of a measure of restraint in the form of guards", - summed up Mikhail Kiriyenko.

According to the President of the Federal Chamber of Lawyers of the Russian Federation Yuri Pilipenko, news about the proposals of the Ministry of Justice inspires certain hopes and indicates the strengthening of the position of the Ministry of Justice in a complex set of ministries and departments, shaping criminal law policy in the country. “A more adequate attitude towards the class of entrepreneurs in the country on the part of law enforcers (but inadequately - this is when a significantly more serious punishment is prescribed for the theft of a million rubles, than for murder) can significantly and positively affect the economic situation of the country and, Consequently, each of us!" he summed up.

Member of the Council of the FPA Tatiana Protsenko emphasized, that the need for these changes is long overdue and has been repeatedly discussed by representatives of the business community at various discussion platforms, including at meetings of "round tables" of the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs Boris Titov, and also reported to the head of state.

“Detention of an entrepreneur at the stage of preliminary investigation and trial, when his guilt has not yet been established by the verdict, when accused of committing an economic crime - i.e.. not associated with violence and does not pose too great a danger to the public - is excessive", - says Tatyana Protsenko.

She added, that at the same time, not only the suspect suffers from the application of such a measure, but business in general. Detention of an entrepreneur, the head of the enterprise in most cases leads to a complete halt of the activities of such an enterprise, what do workers suffer from?, counterparties, suppliers and buyers and what ultimately has a negative impact on business in the country.

FPA Advisor Nver Gasparyan also positively assessed the bill. “It is very important in our difficult time to try to save entrepreneurs, enabling them to create, produce and provide services. Increasing their procedural benefits is the right process. But you should always make an adjustment for a specific law enforcer., who has repeatedly managed to circumvent the preferences provided for by law for this category of citizens. In such a situation, the effectiveness of the new amendments falls on the shoulders of the judiciary., departmental control and prosecutorial supervision”, he concluded.

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