The bill on the definition of economic crimes is submitted to the State Duma
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The Supreme Court of the Russian Federation submitted to the State Duma a draft law fixing the definition of crimes in the sphere of entrepreneurial activity in the Code of Criminal Procedure (CPC). According to the authors, the changes will strengthen the procedural guarantees of entrepreneurs and reduce the number of cases of their detention. Experts note that the draft law is aimed at solving the problem of bypassing guarantees for entrepreneurs by the security forces, but they doubt the success of the initiative – a more comprehensive approach and a change in law enforcement practice are needed.
The draft amendments to the Code of Criminal Procedure submitted yesterday to the State Duma reinforce the definition of crimes in the sphere of entrepreneurial activity. So far, as noted, there is legal uncertainty regarding this concept. The explanatory note to the draft states that the investigating authorities and courts “experience certain difficulties in distinguishing” crimes committed in connection with entrepreneurial or other economic activities and not related to it. Note that the question of such an addition to the Code of Criminal Procedure has been raised by the business community for a long time.
According to the bill, it is proposed to consider crimes in the field of entrepreneurial activity as those committed by an individual entrepreneur or a member of the management body of a commercial organization in the course of carrying out “independent, at their own risk activities aimed at systematically making a profit from the use of property, the sale of goods, the performance of work or the provision of services” ( or other economic activity, if it is a company). In the case of an individual entrepreneur, the definition also includes actions related to the management of property owned by the enterprise.
It is assumed that this should strengthen the procedural guarantees of entrepreneurs – in particular, protect them from abuse during investigative actions, including the seizure of objects and documents, and reduce the number of cases of detention in favor of choosing milder preventive measures (for example, bail) . It should be noted that now the placement of businessmen in a pre-trial detention center is already limited (if the crime is committed in connection with entrepreneurial activity), however, law enforcement agencies sometimes circumvent these norms (see Kommersant dated November 30, 2022).
Ekaterina Avdeeva, head of the Delovaya Rossiya Expert Center for Criminal Law Policy and Enforcement of Judicial Acts, believes that “the definition itself will not solve the problem; criminal proceedings, but are not always applied now.
According to Elizaveta Saykina, Senior Associate at BGP Litigation’s criminal law business protection practice, the bill will contribute to “uniform application of norms in the field of entrepreneurial activity”, but the definition of the boundaries of understanding “what is a crime in the field of entrepreneurial activity” will still depend on the approach of the investigation , as well as the control of higher authorities and courts over the implementation of the guarantees enshrined in the Code of Criminal Procedure.
According to Alexander Erasov, a partner at MEF Legal, in practice, guarantees often do not work, since law enforcement agencies proceed from the fact that entrepreneurs have committed crimes, and criminal activity is not entrepreneurial. The draft law is aimed at eliminating this problem, however, the expert warns, “it is not a fact that the new norms will work.” According to him, the problem is not so much in the legislation, but “in law enforcement with an accusatory bias” – in order for the guarantees to work, “the courts must begin to recognize the actions and conclusions of investigators as illegal”, while this does not happen in all cases where there are law enforcement violations.
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