The court did not offset the costs – Kommersant

The Constitutional Court (CC) allowed equating the amount of criminally obtained income to the total value of the contract, at the conclusion of which the prohibition on restricting competition was violated. As follows from the court ruling published on Thursday, the Constitutional Court sees no reason in principle to refuse such a convenient way to assess “the real degree of threat to protected values.” Accounting for potential costs is problematic in principle, the court notes. The severity of the article imputed to the violator depends on the amount of income, experts say. They assess the main argument of the Constitutional Court as very weak: it is possible to count, just the investigators do not want to.

The Constitutional Court found that the provisions of Art. 178 of the Criminal Code (restriction of competition), allowing equating the amount of criminally obtained income to the total value of the contract. The reason for checking the law was the complaint of the Samara businessman Sergei Shatilo. In 2019, he was found guilty of attempted restriction of competition and sentenced to three and a half years in prison (a higher court replaced the real term with a suspended one). In his actions as the director and sole participant of the economic company during the tender for maintenance and repair of medical equipment, signs of a cartel were revealed. At the same time, the courts came to the conclusion that the defendant’s intent was aimed at extracting income in the amount of the concluded contracts – a total of 768 million rubles, which is a particularly large amount. The businessman did not agree with this approach: in his complaint, he insisted that income should be calculated taking into account the costs necessary to fulfill the contract, otherwise it is already about revenue.

However, the CC did not support it. The amount of income understood in this way is an “objective indicator” that the illegal behavior has reached a high degree of public danger, the court says. The CC recalled that it had already formulated a similar position earlier – for example, by analyzing the understanding of income received from monopolistic activities or unfair competition. Then he pointed out that the amount of criminal proceeds is determined on the basis of the proceeds received by a person for the entire time of such activity, without deducting expenses. Well, in a situation of an attempt to restrict competition (as was the case in the applicant’s case), when the crime is not over and the expenses of the economic entity have not yet been incurred, the assumption that expenses must be taken into account to determine the amount of income “would be devoid of any sense” , notes the court. There are no expenses yet, and therefore the income, which in this case is identified with profit, cannot be calculated. Judicial practice also testifies that the price of contracts is understood as income, including in case of an attempted crime under the challenged article. Finally, the legislator is currently considering the possibility of fixing the existing understanding of this term by amending the challenged article, the court ruling notes.

Experts confirm that this approach to calculating the amount of income has long been entrenched in criminal practice. And this is a problem, notes Julius Tai, Managing Partner at Bartolius. There was hope that the Constitutional Court would sort things out and say that income should be understood as illegally extracted profit. However, this did not happen – the Constitutional Court, in fact, distorted the economic and everyday meaning of the word “income”, without giving convincing arguments in favor of such a decision. It turns out that in cases of restriction of competition, the size of the contract becomes the main criterion that determines the severity of the deed. That is, the more capital-intensive the type of activity is, the more serious the potential crime in this area becomes, but this is absurd, the lawyer is perplexed. Then the law enforcement system is needed to identify the violation and determine how much the offender has benefited. And if the money is stolen in its entirety, then this is a completely different corpus delicti, he adds.

The problem has been discussed for a long time, confirms Aleksey Kostovarov, partner at Liniya Prava. Until some point, it was not so significant, because the article on the restriction of competition was “sleeping”, that is, there were practically no cases initiated on it. However, recently the antimonopoly authorities have become more active, and the Constitutional Court too, the lawyer says: for example, quite recently the Constitutional Court refused to expand the list of grounds for “anti-cartel immunity,” he recalls. Mr. Kostovarov also does not consider the reference to the impossibility of calculating the size of the probable profit as a strong argument: this is not a methodological problem, rather it is about unwillingness, he is sure. Then the law enforcement officer would have to work harder. But, of course, it is more convenient to take the price of the contract and not go anywhere else, the lawyer concludes.

Anastasia Kornya