The measure of restraint will be updated for business – Newspaper Kommersant No. 222 (7423) dated 11/30/2022
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The first package of amendments on the humanization of the criminal legislation in relation to entrepreneurs was approved by the government commission for legislative activity. This, in particular, is about establishing the priority of applying preventive measures to them, allowing them to continue doing business. The business and expert community insist on more systematic measures to control the unjustified activity of the security forces, up to the approval by presidential decree of the national goal of creating a barrier-free environment for business and reforming the existing institutions for protecting the rights of entrepreneurs.
The Government Commission on Legislative Activities has approved the draft law of the Ministry of Justice on amending the Code of Criminal Procedure (CPC) – the amendments were developed on behalf of the President and are part of a program to support entrepreneurship by expanding internal freedoms against the backdrop of increased geopolitical instability. The authors of the project explain that in recent years the proportion of cases of detention has been growing – in 2021, this preventive measure was chosen in 71% of cases against 57% in 2020.
The project of the Ministry of Justice establishes the priority of applying by the court against entrepreneurs and members of the management bodies of companies of preventive measures that allow them to continue doing business. The extension of the terms of detention and preliminary investigation, according to the amendments, must be agreed with the leadership of the regional investigative bodies. At the same time, the Ministry of Justice intends to exclude cases of detention due to an ineffective investigation – investigative actions in themselves cannot be the basis for extending the detention.
The project is fully, conceptually or with comments agreed with the Ministry of Economy, the Ministry of Finance, the Ministry of Internal Affairs, the Investigative Committee, the Prosecutor General’s Office, the Supreme Court (SC), as well as with the Institute of Legislation and Comparative Law under the Government, with the Judicial Department under the Supreme Court, the State Legal Department of the President and the RSPP .
However, as it turned out, the business was not entirely satisfied with the project. “With him it will be easier for entrepreneurs, but I foresee that the problem of their unjustified imprisonment in a pre-trial detention center will still not disappear completely and automatically,” Boris Titov, the commissioner for the protection of the rights of entrepreneurs, believes. The head of the RSPP, Alexander Shokhin, admitted yesterday at the forum-exhibition “Russian Industrialist” that the results of the approvals resulted in “a not very effective design, which only slightly clarifies the existing restrictions.”
Business, as you know, regularly complains about arbitrary law enforcement and the involvement of security forces in the fight against competitors. Now this topic is becoming a key one in discussions about the mechanisms for protecting the rights of entrepreneurs, pushing aside issues of control and supervision. According to the Russian Union of Industrialists and Entrepreneurs, about 80% of entrepreneurs do not feel protected from unreasonable criminal prosecution. To combat it, the ZaBusiness platform was launched in 2019 — in part, this is an analogue of a digital control and supervision system for processing complaints from entrepreneurs about violations of their rights by law enforcement officers. However, unlike the CPV, there was no systemic reform in the criminal sphere that would eliminate the very possibility of unjustified prosecution.
According to Alexander Shokhin, business is counting on further adjustments to the Criminal Code and the Code of Criminal Procedure – it is expected that work will continue at the site of the Ministry of Justice. In particular, we are talking about limiting the terms of detention and about alternative measures of restraint – bail practice and house arrest.
What does the business think about the project
The head of the Russian Union of Industrialists and Entrepreneurs, Alexander Shokhin, expects that work to reduce the criminal risks of business will continue. He noted that the draft has not yet taken into account the proposals of the RSPP on the introduction of coordination of detention with the prosecutor’s office, although such a procedure could provide a more thorough consideration of the arguments of investigators and business. The proposal to consider the issue of extending the detention of those suspected of economic offenses in custody by a higher court was not taken into account either – the union believes that if a particular court has already made a decision on detention, then it “is difficult for it to refuse to extend it.” In addition, the RSPP proposes to scale up the practice of using collateral. They note that now the mechanism practically does not work: one of the reasons is the absence of a fork in the size of the deposit: now there is only a lower limit. Mr. Shokhin proposes to define a strict framework with reference to the amount of alleged harm, for example, by limiting the bail ceiling to twice the amount of damage.
Boris Titov, Commissioner for the Protection of Entrepreneurs’ Rights, draws attention to the fact that the draft retains the wording “if the crimes are committed in connection with the implementation of entrepreneurial activities.” “It is with her help that investigators successfully bypass the restrictions of Part 1.1 of Art. 108 of the Code of Criminal Procedure (prohibition on detention of entrepreneurs.— “b”). If a charge is brought, for example, under an article on fraud, the courts very easily accept the position of the investigation that fraud (not yet proven) has nothing to do with entrepreneurial activity. In this case, the court refuses to consider the entrepreneur an entrepreneur and sends him to jail,” he explains. Now the investigator is invited to prove his position with “specific information confirming that the act was not committed in connection with the implementation of entrepreneurial activity,” but this information may remain exactly the same as before, the business ombudsman fears. “It remains to be hoped that the need for proof will seem too troublesome to some of the investigators and he will consider that the tasks of justice can be solved without isolating the accused. Although the restrictions of Part 1.1 of Art. 108 are successfully (both now and in the future) overcome by declaring a person to have fled from the preliminary investigation bodies or from the court,” adds Mr. Titov. The business ombudsman considers the wording on the choice of a preventive measure that does not interfere with doing business (in addition to refusing to be kept in a pre-trial detention center, this also means refusing to use house arrest), the business ombudsman considers it useful, but on condition that the restrictions described above work.
Sergey Morozov, First Deputy Head of the State Duma Committee on Regional Policy, proposes to solve the problem of excessive pressure from the security forces systematically: to introduce a national goal of creating a barrier-free environment for business by presidential decree and approve an action plan to ensure freedom of entrepreneurship. It is also proposed to expand the capabilities of the commissioners for the protection of the rights of entrepreneurs and make this institution a permanent body of state control. The participants of yesterday’s forum considered it logical to combine the work of the business ombudsman, the digital ombudsman and the ZaBusiness platform.
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