Freedom in exchange for money

The President introduced a bill on radical liberalization of criminal procedure legislation

Yesterday, the State Duma received a bill to amend the Criminal Code and Code of Criminal Procedure of the Russian Federation to “streamline” the relationship between business and law enforcement agencies, which President Medvedev announced on February 26 at a meeting with entrepreneurs. Despite the fact that the approximate contents of this document were already known, it turned out, in the opinion of many observers, to be truly revolutionary.

Among other things, for example, the bill proposes to completely exclude the possibility of arresting businessmen (provided they comply with all the requirements of the investigation) suspected of most economic crimes, including fraud, embezzlement, money laundering, tax evasion, etc. It is also proposed to remove from the Criminal Code such a crime as “false entrepreneurship” and to significantly increase the criteria for “large” and “especially large” amounts of either stolen or “laundered” money, according to which the severity of crimes is determined.

The problem of excessively harsh prosecution by the security forces of people only suspected of economic crimes has been actively discussed in recent months, and has especially become aggravated after the death in a prison hospital of Hermitage Capital Management investment fund lawyer Sergei Magnitsky, who was arrested on charges of tax evasion.

Last week, Dmitry Medvedev announced the preparation of a bill that would expand the practice of using bail as a preventive measure and limit the possibilities of arresting entrepreneurs involved in “economic” criminal cases. The president then assessed the current state of affairs very harshly: “I hope that what I propose will make it possible to at least partially block the opportunity for corrupt law enforcement officials to use imprisonment for raider purposes, otherwise, as we all know, there are enough such examples. They first put you in jail on a tip from a competitor, and then they let you out for money—that’s what happens.”

Until now, the solution to the problem of liberalizing the conditions for doing business, “squeezed” on all sides by the “security forces” and control bodies, has been limited mainly to talk and half-hearted measures. Sometimes it turned out that under the pretext of making life easier for business, on the contrary, even more severe sanctions and punishments were imposed.

However, the text of the presidential bill exceeded the wildest expectations of entrepreneurs, and the worst for investigators and police officers. The first are offered certain guarantees, albeit with many reservations, from going to prison until sentencing, and for the second, the “rules of work” with the accused are significantly more complicated, who are now supposed to be sent to prison just because of the very fact of initiating a criminal case you won't send it.

According to the text of the bill, it is proposed to significantly expand the list of crimes specified in Part 1.1 of Article 108 of the Code of Criminal Procedure, for which accused or suspects cannot be arrested. In December 2009, a rule was introduced according to which only four articles of the Criminal Code of the Russian Federation were classified as such - 198 (tax evasion from an individual), 199 (tax evasion from organizations), 199-1 (failure to fulfill the duties of a tax agent ) and 199-2 (concealment of funds or property of organizations at the expense of which taxes should be collected). Now, as expected, entrepreneurs accused of almost 30 additional crimes should not be subject to arrest (see information).

Such defendants, however, cannot avoid arrest unconditionally, but only if certain conditions are met: they must have permanent residence in Russia, their identity must be established, they must not violate a previously chosen preventive measure and hide from the investigation and trial. It turns out that the investigation still has “loopholes” for arresting certain businessmen. In addition, a careful study of the bill revealed some “open” questions. Thus, it is assumed that only those citizens who are accused of economic crimes committed “in the field of business activity” can avoid arrest. However, this concept is obviously very vague, and in many cases it is very difficult to distinguish entrepreneurship from outright criminality. In addition, another conflict may arise - it turns out that if such large-scale figures, such as Sergei Mavrodi, do not “run” from the investigator, they will also not be subject to arrest. Theoretically, of course, it is possible to understand each situation and distinguish an “economic” defendant from an ordinary criminal swindler, but for law enforcement officers, given their current state, this will be a serious problem. In addition, the bill does not clearly state what kind of preventive measure should be chosen for those who are not subject to arrest. Considering the exact amounts of bail provided for in the bill for the release of the accused, it is not clear whether those who, for example, cannot collect the required amount, will be subject to arrest.

It is obvious that a fierce struggle will flare up around this bill during the discussion, and it is not at all a fact that it will be adopted in the same “revolutionary” form. However, even so, the proposed rule may seem unprecedented. Indeed, in many ways, if adopted, it will have an impact on the fate of businessmen not only before the verdict, but also after. Many human rights activists and lawyers are confident that a huge number of guilty verdicts are handed down by the courts, in part, not only due to the credibility of the charges, but also for completely different reasons - to simply justify the fact of the arrest of the accused. After all, declaring an arrest illegal gives a person the right to demand rehabilitation and compensation from the state. Accordingly, for the authorities as a whole, acquittals often mean significant financial costs. Following this logic, there will be fewer arrests - and there will be less incentive to obtain convictions.

In addition, according to the bill, release on bail as a preventive measure receives much more specificity - starting with who it should be granted and when, ending with its size, which is not in the current text of the corresponding Article 106 of the Code of Criminal Procedure. According to the bill, bail at the stage of preliminary investigation will be deposited with the body conducting the investigation, and at the stage of trial - with the court. Moreover, the collateral can be money, valuables and securities, as well as real estate. True, there is a reservation that “a residential premises (part thereof) owned by the pledgor by right of ownership cannot be accepted as collateral if for the mortgagor and his family members living in this premises it is the only one suitable for permanent residence.”

It is allowed, according to the draft, to raise the issue of bail “at any time during criminal proceedings,” and “a suspect, accused or other individuals and legal entities have the right to apply for bail before the court.”

The bill also determines that “in criminal cases of crimes of minor and medium gravity, the bail cannot be less than 100 thousand rubles, and in criminal cases of serious and especially grave crimes - less than 500 thousand rubles.” Perhaps this innovation will be effective if we are talking about crimes “in the field of business activity”, for the sake of which this whole business was started. But what about the notorious jailers “for a sack of potatoes”? After all, judicial practice now strives to avoid arrests in such cases altogether, and now it may turn out that such a “thief” will not go to jail, but for a bag of potatoes worth 400 rubles. he will have to pay a deposit of at least 100 thousand rubles.

If the issue of posting bail is decided in relation to a person who has already been detained, then the bill gives the court the right to extend the period of detention, but “for no more than 72 hours from the date of the court decision.”

The bill also proposes making significant changes to the Criminal Code of the Russian Federation, both in terms of wording and sanctions for committing a number of crimes. In particular, if now the fine for obstructing legal business activity is provided in the amount of up to 200 thousand rubles, now it is proposed to make this amount the starting amount, and set the maximum limit at 500 thousand rubles. The sanctions for the same crime will change somewhat if it was committed “in violation of a judicial act that has entered into legal force, and also caused major damage.” For this, you can lose the right “to engage in certain activities for a period of three to five years” (currently no lower limit for this period has been established), and in addition, the fine will increase to 250 thousand rubles against the current maximum of 80 thousand rubles. If the judge decides to sentence the culprit to imprisonment, then, according to the proposed changes, he can send him to a colony for up to three years, and now - only for up to two years.

The definitions of large and especially large “size and damage” are also changing. Thus, by today’s standards, a large amount (damage, income or debt on a large scale) “recognizes the cost, damage, income or debt in an amount exceeding 250 thousand rubles, especially large - 1 million rubles.” According to the president’s proposal, a large amount will be considered an amount of 1 million, and a particularly large amount will increase to 6 million rubles. (with some exceptions). Of course, this will have a strong impact on the classification of economic crimes in certain cases, and many of them will move from the category of more serious to less serious, and, consequently, the penalties for their commission will be reduced.

It is also proposed to change the wording of the crime called “illegal entrepreneurship” (Article 171 of the Criminal Code). Now it sounds like “carrying out business activities without registration or in violation of registration rules, as well as submitting documents containing knowingly false information to the body that registers legal entities and individual entrepreneurs, or carrying out business activities without a special permit (license) in cases when such permission is required, or in violation of licensing requirements and conditions.” The latter circumstance will be excluded and thus there will be no criminal liability for it. The same thing - violation of licensing requirements and conditions - will disappear from the definition of “illegal banking activity” (Article 172 of the Criminal Code).

And “false entrepreneurship” (Article 173 of the Criminal Code) will completely disappear from the Criminal Code. This term itself can be completely forgotten, although previously one could get up to 4 years in prison for false entrepreneurship.

The legalization (laundering) of funds or other property acquired by other persons through criminal means, which nowadays so often accompanies many high-profile and not so high-profile cases of various thefts, will also undergo changes in terms of determining large amounts. “The words “one million” should be replaced with the words “six million,” the bill proposes. Article 174-1, somewhat similar in sound, but still different in meaning - “legalization (laundering) of funds or other property acquired by a person as a result of committing a crime” - was completely rewritten in the draft presented by the president. Now financial transactions and other transactions with funds or other property acquired in this way are acquired with “goals” in the form of “giving a legal appearance to the possession, use and disposal of these funds or other property on a large scale.” The fine for this will range from 100 thousand to 300 thousand rubles. In this case, a large amount is considered to be the same 6 million rubles. Now money laundering in such amounts is qualified by Part 2 of Article 174-1, and Part 1 provides for punishment for legalization regardless of these sizes. Thus, according to the draft amendments to the Criminal Code, it turns out that everything that is “laundered” in the amount of less than 6 million rubles will not be considered a crime. In addition, if this legalization was carried out by a group of persons by prior conspiracy or by a person using his official position, then the sentence will be reduced compared to the current norm. Now it is measured from 4 to 8 years, and will be up to 5 years without a “starting” position. And if an organized group ends up in the dock, its participants will face a sentence of 7 to 10 years, instead of the current 10 to 15 years.

The definitions of the “large” amount of funds in foreign currency not returned from abroad will also undergo changes (Article 193 of the Criminal Code) - from 5 million, the “large” amount will increase to 30 million rubles. In relation to “evasion of customs duties levied on an organization or individual” (Article 194 of the Criminal Code), a large amount will now be considered an amount of 3 million rubles or more. (now 500 thousand), and especially large ones - 36 million rubles. (currently 1.5 million rubles).

Well, the latest innovation applies to all citizens who are planning to leave their homeland. The bill proposes to amend the federal law on the procedure for exit and entry into the Russian Federation, according to which the right of a Russian citizen to leave the country may be limited if “in accordance with criminal procedural legislation, he is a suspect or charged as an accused in a criminal case before entering into the legal force of the court verdict." Thus, refugee status in countries of “decaying capitalism” will apparently be more difficult to obtain.

According to the president’s plan, Russian entrepreneurs who are suspected or accused of committing the following economic crimes listed in the eighth section of the Criminal Code of the Russian Federation cannot be arrested :

- fraud (Article 159);

- misappropriation or embezzlement (Article 160);

- causing property damage by deception or abuse of trust (Article 165).

These three crimes do not provide for arrest, provided that they are committed in the field of business activity. And also, regardless of this area, the preventive measure in the form of detention will not be applied to suspects and accused of such criminal offenses as:

- illegal entrepreneurship (Article 170);

- production, acquisition, storage, transportation or sale of unmarked goods and products (Article 171-1);

- illegal banking activities (Article 172);

- legalization (laundering) of funds or other property acquired by other persons through criminal means (Article 174);

- legalization (laundering) of funds or other property acquired by a person as a result of committing a crime (Article 174-1);

- illegal receipt of a loan (Article 176);

- malicious evasion of repayment of accounts payable (Article 177);

- prevention, restriction or elimination of competition (Article 178);

- illegal use of a trademark (Article 180);

- violation of the rules for the manufacture and use of state hallmarks (Article 181);

- knowingly false advertising (Article 182);

- illegal receipt and disclosure of information constituting commercial, tax or banking secrets (Article 183);

- abuse in the issue of securities (Article 185);

- malicious evasion of disclosure or provision of information specified by the legislation of the Russian Federation on securities (Article 185-1);

- violation of the rules for recording rights to securities (Article 185-2);

- manipulation of prices on the securities market (Article 185-3);

- obstruction of the exercise or illegal restriction of the rights of owners of securities (Article 185-4);

- non-return to the territory of the Russian Federation of objects of artistic, historical and archaeological property of the peoples of the Russian Federation and foreign countries (Article 190);

- illegal trafficking of precious metals, natural stones or pearls (Article 191);

- violation of the rules for the delivery of precious metals and precious stones to the state (Article 192);

- non-return of funds in foreign currency from abroad (Article 193);

- evasion of customs duties levied on an organization or individual (Article 194);

- unlawful actions in bankruptcy (Article 195);

- deliberate bankruptcy (Article 196);

- fictitious bankruptcy (Article 197);

- evasion of taxes and (or) fees from an individual (Article 198);

- evasion of taxes and (or) fees from the organization (Article 199).

Ekaterina BUTORINA, Victor PAUKOV