Detention of suspects committed business and economic crimes : some application problems

Prilepskii Evgenii Timofeevich Postgraduate of the Department of Criminal Procedure, Kuban State University; Assistant Judge of the Krasnodar Regional Court 350000, Russia, Krasnodar region, Krasnodar, Stavropol str., 149 prilepskii_e@rambler.ru

The absolute primacy of the principle of legality in the field of ensuring and observing human rights and freedoms is the most important guarantee of the realization of the right to freedom of entrepreneurial and other economic activity. The effectiveness of the development of this sphere affects both internal economic qualitative and quantitative indicators, and determines the position of the state in the international arena.  In modern conditions, when unprecedented sanctions pressure is exerted on our country, it is especially important to create the most comfortable and predictable conditions for the functioning of economic entities. Achieving a tangible improvement in the business and investment climate is possible only if the guarantees of the rights of persons engaged in entrepreneurial activity and their clear, uniform enforcement implementation are legislated.

In recent years, the Russian Federation has consistently implemented measures aimed at humanizing criminal procedure and criminal legislation, steps are being taken to improve legislation in order to reduce the number of persons detained to isolated cases if the activities of the accused (suspects) are related to entrepreneurship (in accordance with Part 1.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation). An example is Federal Law No. 315-FZ of August 02, 2019 "On Amendments to Articles 108 and 109 of the Criminal Procedure Code of the Russian Federation" ^[1].

Against the background of a broad public discussion about the presence of undue pressure on business, through the unjustified initiation of criminal cases and the use of the mechanism of choosing a preventive measure as a tool for prosecuting entrepreneurs and other economic entities, it seems relevant to analyze and study both legislative regulation and the law enforcement aspect of choosing such a strict preventive measure as detention in relation to suspects (accused) of criminal acts in the sphere of economic activity.

In his annual messages to the Federal Assembly and other public speeches, the President of the Russian Federation V.V. Putin^[14] has repeatedly pointed out the inadmissibility of unjustified detention of persons accused of the above-mentioned crimes, and the need to develop the issue of making appropriate amendments to the current legislation in order to minimize the possibility of unjustified criminal prosecution of business.

Despite the fairly consistent policy of the state aimed at protecting the interests of entrepreneurship, speaking with the next address to the Federal Assembly in 2022, the President had to note that the measures taken were clearly insufficient and the situation had not undergone any serious changes. 

On August 18, 2022, the Ministry of Justice of the Russian Federation submitted draft amendments to the Code of Criminal Procedure of the Russian Federation, which relate to increasing the level of guarantees for persons suspected (accused) of crimes committed in the economic sphere. These amendments are planned to be considered within the framework of public discussion in order to legislatively exclude the "redundancy" of criminal impact on entrepreneurs^[10].

This legislative initiative was also supported by the Chairman of the Supreme Court of the Russian Federation V.M. Lebedev during a meeting on September 15, 2022 with delegates of the X All-Russian Congress of Judges from Courts, indicating that the Supreme Court of the Russian Federation supports proposals to further expand the scope of preventive measures not related to detention, including for the category of criminal acts under consideration^[12].

It should be noted that detention is the most stringent preventive measure provided for by the criminal procedure legislation. The provisions of Part 1.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation separately regulate the procedure for applying the measure under study against persons suspected or accused of committing crimes related to entrepreneurial and other economic activities. The said norm establishes an exhaustive list of criminal acts for which it is impossible to apply a preventive measure in the form of detention. Such a ban is valid only if the identity of the suspect (accused) has been established; he has a permanent place of residence on the territory of the Russian Federation; there are no violations of preventive measures applied earlier; if the suspect or accused did not hide from law enforcement agencies.

Even with such a detailed regulation of the procedure for the application of measures in the form of detention, the Plenum of the Supreme Court of the Russian Federation, in order to maintain uniformity of law enforcement practice, draws attention to the fact that when resolving a petition for her election in accordance with Part 1.1 of Article 108 of the Code of Criminal Procedure, in all cases it is necessary to discuss the possibility of applying another, milder, preventive measure^[2].

Additional requirements are also established for the content of the investigator's (inquirer's) petition for the application of detention to a suspect (accused) of committing a crime in the field of entrepreneurial activity. It is indicated that the courts should establish the circumstances that the committed crime is not related to the implementation of entrepreneurial activity. If such information is not established, then the court should refuse to grant such a request.

It should be noted that the number of entrepreneurs in respect of whom the issue of choosing a preventive measure in the form of detention is being decided, according to the category of cases under consideration, is a small number in comparison with the total number of persons in custody. At the same time, there is an annual trend towards their reduction, which is confirmed by statistical data provided in the report on the work of courts of general jurisdiction on the consideration of criminal cases in the first instance for 2021. Thus, during the specified period, the courts considered 98,034 petitions for the election of a preventive measure in the form of detention, as well as 200,503 petitions for extension the term of detention, but only 756 of them in relation to the accused, defined in Part 1.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation^[13].

It is characteristic that in 2021, out of 5,500 criminal cases considered for "entrepreneurial" criminal acts, 67% of the accused were convicted, and only 9% received real imprisonment^[11]. Nevertheless, despite the observed positive trend, there are cases when the courts, choosing detention, ignore the requirements of the criminal procedure law, as well as the legal positions of the highest judicial instances. This fact is emphasized in the judicial acts of the Supreme Court of the Russian Federation, indicating that the courts did not take into account the scope of the crime committed when issuing a judicial act.

For example, the court refused to satisfy the investigator's request to extend the period of detention in respect of a person accused of committing a crime under Part 3 of Article 159 of the Criminal Code of the Russian Federation, and changed his preventive measure to house arrest. At the same time, the court justified the application of this measure by the provisions of Part 1.1., paragraphs 1-4 of Part 1 of Article 108 of the Code of Criminal Procedure, namely, by the absence of the circumstances specified in paragraphs 1-4 of Part 1 of Article 108 of the Code of Criminal Procedure, as well as by the fact that it follows from the materials submitted to the court that a person is suspected of committing a crime in in the sphere of entrepreneurial activity^[5].

M.V. Zyablina noted that the preliminary investigation bodies often incorrectly apply the provisions of Part 1.1 of Article 108 of the Criminal Procedure Code of the Russian Federation ^{[8, p. 35]}. So, most often they allow a violation when justifying their petition, namely, there are no specific materials confirming that the crime was committed in the field of entrepreneurial activity.

Another example is the decision of the Tverskoy District Court. As part of the case, a preventive measure was chosen in the form of detention against a person who is an entrepreneur. By an appeal Decision, the Moscow City Court overturned the decision, sent the case for consideration by the court of first instance in a different composition. Canceling the judicial act, the court of appeal pointed out that when considering the case in the first instance, it was not taken into account that the person was suspected of committing a nonviolent crime. At the same time, pointing out that Part 1.1 of Article 108 of the Criminal Procedure Code of the Russian Federation is not subject to application, the court did not disclose the constituent elements of entrepreneurial activity and did not take into account the specifics of a specific criminal case. Moreover, the resolution does not describe the circumstances of the act incriminated to the entrepreneur. It follows from this that the court violated the requirements of Article 99 of the Code of Criminal Procedure of the Russian Federation, in addition, failed to properly assess and argue the possibility of applying Part 1.1. of Article 108 of the Code of Criminal Procedure of the Russian Federation^[4].

These examples allow us to conclude that in some cases the courts ignore the arguments about the commission of crimes in the field of entrepreneurship, or note that they are unfounded, since the elements of crimes imputed to the accused are not related to entrepreneurship.

The problem of the application of the considered preventive measure against economic entities is raised both in the scientific literature and by practicing lawyers. For example, P.N. Statsenko points out that courts often unreasonably apply the strictest measure of restraint against entrepreneurs and the reason, in his opinion, lies not in the imperfection of the criminal procedure law, but in the incorrect interpretation of the norms of law by the courts when applying them^[15].

It is impossible not to agree with the correctness of this statement, but it should be noted that the misinterpretation of the norms of the law to a certain extent is a consequence of the lack of specifics in the legal norm itself. In the text of Part 1.1 of Article 108 of the Criminal Procedure Code of the Russian Federation, the legislator, describing the area in which the accused (suspect) carries out his activities, uses different terminology indicating "entrepreneurial activity" and "other economic activity", without disclosing their substantive part. The law enforcement officer is forced to focus on the definitions of these concepts in other normative acts, which certainly makes it difficult to make the right decision and makes it possible to freely interpret the law. As a result of this, mutually exclusive practice is formed by the courts and the same circumstances are interpreted in opposite senses. As an example of the described situation, we can cite the cassation ruling of the Judicial Board for Criminal Cases of the Supreme Court of the Russian Federation No. 78-UD21-19-KZ on 10.08.2021^[3]. In the said judicial act, when satisfying the representation of the prosecutor's office and canceling the lower-level decision, the court concluded that if a person commits an illegal act, then it in itself cannot be attributed to the sphere of entrepreneurial and other economic legal relations, since it contradicts the requirements of civil legislation. This position seems controversial and once again indicates the need to develop a uniform and consistent judicial practice that does not allow courts to interpret the concepts of entrepreneurial and other economic activities in different directions.

A possible solution to this problem may be the consolidation of a more capacious concept directly in the text of the Code of Criminal Procedure of the Russian Federation, with a high degree of certainty. In our opinion, the replacement of the two concepts of "economic" and "entrepreneurial" activity by a more voluminous one in its content – "economic activity", proposed by O.V. Gladysheva, seems optimal ^{[6, p. 103]}. In addition, we believe that it is necessary to define clear criteria by which economic activity could be distinguished from other types of activities to which the provisions of Article 108 of the Criminal Procedure Code of the Russian Federation are not applicable.

It should be noted that currently there are various points of view and proposals on improving the effectiveness of measures aimed at protecting business entities from unjustified detention. For example, V.V. Rudich, considering this issue, proposes to exclude the possibility of choosing a preventive measure in the form of detention against entrepreneurs, replacing it with those that are not related to isolation from society, except in cases when the object of criminal encroachment is public and state interests ^{[9, p. 198]}.

Such a proposal seems to us somewhat categorical, since such changes need to be approached as differentiated as possible. Otherwise, persons engaged in entrepreneurial and other economic activities may turn into an untouchable group with a preferential legal regime. And, in our opinion, such a trend is already being outlined, against the background of the changes already made to the criminal procedure legislation. Analyzing the current state criminal law policy, V.A. Sementsov and O.V. Gladysheva quite rightly come to the conclusion that the resource of criminal proceedings is used in such a way that as a result preferences are created for persons who have committed crimes in the field of entrepreneurial activity ^{[7, p. 20]}.

Summing up the results of the study, it can be concluded that the problem of applying a preventive measure in the form of detention against suspects (accused) for criminal acts in the field of economic activity is not so much an insufficiently clear legal regulation, as the fact that in practice the courts have not developed a single consistent position, which does not allow to freely interpret the fundamental concepts for definitions of the scope of legal relations to which the provisions of Part 1.1 of Article 108 of the Code of Criminal Procedure of the Russian Federation apply.

In addition, as part of the further comprehensive implementation of measures to reform the institutions for the protection of entrepreneurship and the creation of favorable conditions for the normal functioning and development of entrepreneurship, it is necessary to develop and adopt such amendments to the current criminal procedure legislation that would really be able to protect entrepreneurs from unjustified detention against them.