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Business Duty Officer

Bail instead of arrest

Bail instead of arrest

As became known "uh", Business Ombudsman Boris Titov sent his opinion on the bill to the Ministry of Justice, complicating the procedure for the detention of entrepreneurs - the measures proposed by the department, comes from a letter, not effective enough. In particular, the definition of the incriminated acts as related to entrepreneurial activity remains a matter of law enforcement practice - now this approach is turning into, that guarantees for entrepreneurs do not work. The issue of the priority of other preventive measures is also considered unresolved - Business Ombudsman, like the RSPP, proposes to expand the practice of using collateral.

Business Ombudsman Boris Titov sent a review to the Ministry of Justice on the draft amendments to the Criminal Procedure Code of the Russian Federation, concerning the choice of a preventive measure against entrepreneurs. Recall, the department proposed to include in the law a ban on the detention of a suspect or accused of committing crimes of small and medium gravity in the field of entrepreneurial and other economic activities, the obligation of the prosecutor to give consent to the initiation of a petition for the selection of this measure of restraint, as well as limiting the maximum period of preliminary investigation in such cases from one year to six months.

However, as follows from the business ombudsman's letter ("b" has), the changes proposed by the draft are “not effective enough”. The key issue remains the determination by the investigation or the court of the incriminated acts as related to entrepreneurial activity.. Let's explain, now for a number of crimes (for example, fraud) it is not allowed to choose a measure of restraint in the form of detention, if it is connected with the implementation of entrepreneurial activity, it is planned to “strengthen” this norm due to the need to include confirmation of “specific information” in the corresponding petition of the investigator, that the alleged act was not committed in connection with such activity. However, follows from the letter of the business ombudsman, this approach lacks certainty.: the effectiveness of this rule, like the current one, highly dependent on law enforcement practice. As a result, complains Boris Titov, “In many cases, the mechanisms, aimed at protecting entrepreneurs, don't work".

According to the business ombudsman, to solve this problem, it is possible to prohibit the imprisonment of entrepreneurs in a pre-trial detention center in cases, if the charge is brought under any of the "economic" articles of the Criminal Code of the Russian Federation - provided, that the crime does not involve violence, and the accused has the status of an entrepreneur (for example, Individual entrepreneur or member of the governing body of a commercial organization). At the same time, the conditions already provided for by the Code of Criminal Procedure must also be observed.: the accused did not violate the measure of restraint previously chosen against him and did not hide from the investigation.

Comments were also raised by the provisions of the draft law on the obligation of the court to “find out the possibility” of applying a different measure of restraint when considering a petition for taking an entrepreneur into custody., which would allow him to continue his activities - such a formulation implies, in particular, possibility of electing house arrest. As Boris Titov points out, such a measure of restraint "still does not allow you to manage the enterprise, harms business processes” — in this regard, the recall proposes to establish, what for entrepreneurs, committed economic crimes, pledge or prohibition of certain actions is elected (if there are no additional grounds for restrictions - for example, violations of a previously chosen measure of restraint).

In general, business associations support the project of the Ministry of Justice, however, they also note the remaining unresolved problems. State Secretary - Vice-President of the RSPP for Legal Regulation and Law Enforcement Alexander Varvarin tells, that a significant part of the proposals of the union was included in the draft, however, it does not take into account the expansion of the use of bail as a preventive measure. “It is the bail that could become the main alternative to detention and house arrest and would allow you to continue doing business”,says Mr Varvarin. According to the head of the Delovaya Rossiya expert center on criminal law policy and enforcement of judicial acts, Ekaterina Avdeeva, the proposed changes “are an important vector for the development of legislation, but they only partially satisfy the request for the creation of proper security in the course of investigating crimes”. In particular, she notes the need for amendments, related to detention when businessmen are charged with serious offenses.

The Ministry of Justice told Kommersant, that “all proposals received as part of the public discussion will be analyzed and worked out”. The department has already received proposals from the business ombudsman - they are under consideration.

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