Bail instead of arrest – Economics – Kommersant

As it became known to Kommersant, business ombudsman Boris Titov sent his opinion to the Ministry of Justice on a bill complicating the procedure for detaining entrepreneurs – the measures proposed by the department, it follows from the letter, are not effective enough. In particular, the definition of incriminated acts as related to entrepreneurial activity remains a matter of law enforcement practice – now this approach turns into the fact that guarantees for entrepreneurs do not work. The question of the priority of other preventive measures is also considered unresolved – the business ombudsman, like the RSPP, proposes to expand the practice of using bail.

Business Ombudsman Boris Titov sent a response to the Ministry of Justice on the draft amendments to the Code of Criminal Procedure of the Russian Federation regarding the selection of a measure of restraint against entrepreneurs. Recall that 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 duty of the prosecutor to give consent to the initiation of a petition for the election of this measure of restraint, as well as limiting the maximum period of preliminary investigation for such cases from a year to six months.

However, as follows from the letter of the business ombudsman (Kommersant has it), the amendments proposed by the draft are “not effective enough.” The key issue remains the definition by the investigation or the court of the incriminated acts as related to entrepreneurial activity. Let us explain that 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 this is related to the implementation of entrepreneurial activity – it is planned to “strengthen” this rule 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, it follows from the business ombudsman’s letter that this approach lacks certainty: the effectiveness of this rule, as well as the current one, is highly dependent on law enforcement practice. As a result, Boris Titov complains, “in many cases, the mechanisms aimed at protecting entrepreneurs do not 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 where charges are brought under any of the “economic” articles of the Criminal Code of the Russian Federation – provided that the crime is not associated with violence, and the accused has the status of an entrepreneur (for example, Individual entrepreneur or member of the management 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 preventive measure previously chosen against him and did not hide from the investigation.

Comments were also raised by the provisions of the draft law on the duty of the court, when considering a petition to detain an entrepreneur, to “find out the possibility” of applying another measure of restraint that would allow him to continue his activities – such a wording implies, in particular, the possibility of electing house arrest. As Boris Titov notes, such a preventive measure “still does not allow managing an enterprise, it harms business processes” – in this regard, the review proposes to establish that for entrepreneurs who have committed economic crimes, a pledge or prohibition of certain actions is chosen (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, but also note the remaining unresolved problems. State Secretary, Vice President of the RSPP for Legal Regulation and Law Enforcement Alexander Varvarin says that a significant part of the union’s proposals was included in the project, but it does not take into account the expansion of the practice of using bail as a preventive measure. “It is 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 Ekaterina Avdeyeva, head of the Delovaya Rossiya expert center for criminal law policy and enforcement of judicial acts, the proposed changes “are an important vector for the development of legislation, but they only partially satisfy the request to create proper security in the course of investigating crimes.” In particular, she notes the need to introduce amendments related to detention when businessmen are charged with grave crimes.

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.

Evgenia Kryuchkova