Key changes in the resolution of the Plenum of the Supreme Court on crimes in the sphere of entrepreneurship
On June 11, 2022, changes were made to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated November 15, 2016 No. 48 “On the practice of application by courts of legislation regulating the specifics of criminal liability for crimes in the field of business and other economic activities.” Practicing lawyers in the field of criminal law and procedure should pay attention to the following key innovations:
1. Consideration of complaints by the courts against a decision to initiate a criminal case in the field of business activity. The new version of the resolution is supplemented by a requirement for the courts to verify the legality and validity of procedural actions and operational-search measures carried out by these bodies and their officials during the verification of a report of a crime. When considering complaints, special attention should be paid to assessing actions and measures related to the restriction of property and other rights and freedoms of entrepreneurs and (or) persons in labor relations with them (for example, ordering documentary checks and audits, obtaining samples for comparative research, requesting or seizure of documents and objects belonging to an individual entrepreneur or commercial organization, including electronic storage media, inspection of production premises, buildings, structures, areas and vehicles belonging to them).
2. Initiation of criminal cases regarding tax crimes. The new version of paragraph 5 of the resolution is supplemented with clarifications that before receiving a conclusion or information from the tax authority on the presence of signs of a crime, it may be considered sufficient data to initiate a criminal case.
Thus, data indicating signs of crimes provided for in Articles 198–199.1, 199.3, 199.4 of the Criminal Code of the Russian Federation may be contained, in particular, in materials sent by the prosecutor to the investigative body to resolve the issue of criminal prosecution, in an expert’s opinion and other documents.
If, based on the results of the audit, the court determines that the decision to initiate a criminal case on tax crimes was made by the investigator in the absence of sufficient data indicating the signs of these crimes (for example, if the decision of the tax authority to collect arrears was declared illegal in administrative proceedings), then such a decision investigator is recognized by the court as illegal and (or) unfounded.
3. Choosing a preventive measure in the form of detention. The Supreme Court has continued its policy aimed at combating formalism when making decisions to imprison entrepreneurs.
The resolution specifies that if the issue of choosing the specified preventive measure is considered in relation to a person who is an entrepreneur or a member of the management body of a commercial organization who has committed a crime from the list of Part 1.1 of Art. 108 of the Code of Criminal Procedure of the Russian Federation, courts should check whether the resolution to initiate a petition and whether the materials attached to the resolution contain specific information confirming the conclusion that the crime charged to him was not committed in connection with his business activities and (or) management of property owned by him. him with property used for the purposes of entrepreneurial activity, either not in connection with the exercise of his powers to manage this organization or not in connection with the implementation by a commercial organization of entrepreneurial or other economic activities. In the absence of this information, courts should refuse to satisfy investigators’ requests to choose an exceptional measure of restraint.
The presence in the decision to initiate a petition to select a preventive measure in the form of detention and the materials attached to the decision indicating the mercenary motive of the suspect or accused, as well as the method of disposing of the stolen property (for example, appropriated personally or used for business purposes) cannot serve as a basis to recognize an act as committed without connection with the implementation of entrepreneurial activity
4. Involving company employees as accomplices in the crime. The new edition of the resolution of the Plenum of the RF Armed Forces for the first time raised the issue of qualifying the actions of company employees who, along with the manager, committed actions (inactions) that constitute the objective side of the crime.
According to the explanations of the Supreme Court, the labor or personal relationships that have developed between an employee and an individual entrepreneur or a member of the management body of a commercial organization within the framework of the entrepreneur or organization’s economic activities cannot in themselves be considered as evidence of the commission of a crime as part of a group of persons by prior conspiracy, and the execution an employee's orders from a manager related to criminal activity cannot be the only basis for holding the employee accountable for co-perpetration in such a crime.
If the perpetrator of the crime is a person who meets the criteria of a special subject (provided for, for example, in parts 5–7 of Article 159, Articles 159.1, 160, 176, 178, 195–199.4, 201 of the Criminal Code of the Russian Federation), then these acts can be recognized as committed by a group of persons according to preliminary conspiracy only in the case when two or more such entities participated in the commission of the act. Other employees of the organization cannot be recognized as co-perpetrators of these crimes.
5. Circumstances excluding the criminality of the act. In the new paragraphs 18.1-18.3 of the resolution of the Plenum of the RF Armed Forces, an interpretation of Part 2 of Art. 14 of the Criminal Code of the Russian Federation (insignificance), Art. 39 of the Criminal Code of the Russian Federation (extreme necessity) and Art. 41 of the Criminal Code of the Russian Federation (reasonable risk) in relation to crimes in the field of business activity.
Thus, in cases where an act containing signs of a crime in the field of entrepreneurial and other economic activity was committed by a person in order to eliminate or prevent a danger that directly threatens the individual, the legally protected interests of society or the state, and this danger could not be eliminated by other means, then such an act cannot be considered criminal provided that the limits of extreme necessity were not exceeded (Article 39 of the Criminal Code of the Russian Federation).
For example, temporary carrying out business activities without a license (the license is not renewed within the established time frame) does not entail criminal liability if the cessation of this activity may lead to disruption of the work of life support facilities (cessation of water intake, water treatment, heat supply to housing and social facilities of a populated area, the threat of a man-made accident and etc.).
To recognize the actions taken by a person as extremely necessary (not criminal), the presence and actual nature of the danger that has arisen must be established, as well as the impossibility of eliminating it without causing damage to the interests of the individual, society or state and the absence of a clear excess of permissible limits, including in the form of causing harm equal to or greater than that which could have been caused by further development of the danger that has arisen.
Courts should keep in mind that the provisions of Article 41 of the Criminal Code of the Russian Federation also apply to persons who have taken a justified risk in the course of business and other economic activities to achieve a socially useful goal, provided that the risk meets the criteria specified in the law. These include the impossibility of achieving a socially useful goal by committing actions (inaction) that are not associated with risk, and the taking by the person who committed the risk of sufficient measures to prevent harm to the interests protected by criminal law.
If a person, in the course of carrying out entrepreneurial and other economic activities in order to achieve a socially useful goal, commits actions (allows inaction) that are obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or public disaster, then by virtue of Part 3 of Article 41 of the Criminal Code of the Russian Federation the risk cannot be considered justified.
When making a legal assessment of actions related to violation of the procedure for carrying out business and other economic activities, courts must take into account the provisions of Part 2 of Article 14 of the Criminal Code of the Russian Federation, which states that an action (inaction), although formally containing signs of an act, is not a crime, provided for by criminal law, but due to its insignificance, does not pose a public danger.
Another comment on Art. 231 of the Criminal Code of the Russian Federation
1. The subject of the crime is plants containing narcotic drugs or psychotropic substances or their precursors.
2. The objective side of the crime is characterized by the commission of an action specified in the law, the content of which is disclosed in Resolution of the Plenum of the Supreme Court of the Russian Federation of June 15, 2006 No. 14.
3. The production of narcotic drugs from relevant plants, their subsequent storage, transportation in large quantities or their shipment, production or sale, regardless of size, are additionally qualified under Art. Art. 228 or 228.1 of the Criminal Code of the Russian Federation.
4. The sizes of plants containing narcotic substances or psychotropic substances or their precursors are approved by the Government of the Russian Federation (currently, the Decree of the Government of the Russian Federation of September 3, 2004 N 454 “On the prohibition of the cultivation of plants containing narcotic substances on the territory of the Russian Federation” is in force).
INTERNATIONAL REGULATIONS AGAINST MONEY LAUNDERING
Legalization (laundering) of funds and other property acquired by criminal means is currently organized, international and digital in nature. So-called professional launderers, united in criminal groups, provide cross-border services to conceal the criminal origin of property, including through various transactions with virtual assets (cryptocurrency). This causes serious concern in Russia and abroad. The international community is making joint efforts to combat this crime. In particular, for this purpose, the Financial Action Task Force (FATF) was created in 1989, an intergovernmental organization that sets standards for legal measures to protect the global financial system from the threats of money laundering, as well as promoting the adoption and effective implementation of such measures throughout the world. to the world. The FATF Recommendations (hereinafter also referred to as the FATF Standards) are generally recognized international standards for combating money laundering (international anti-money laundering standards). The Russian Federation has been a member of the FATF since 2003.
Russia has ratified the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and the Financing of Terrorism of 16.05.2005 (hereinafter referred to as the Convention). Thus, the Russian Federation accepted the obligation to take into account the Antio (Clause 1 of Article 13 of the Convention).
THE CONCEPT OF VIRTUAL ASSETS
At its plenary meeting in October 2022, the FATF adopted an amendment to Recommendation 15 “New technologies” aimed at strengthening the fight against laundering of criminal proceeds expressed in the form of virtual assets (cryptocurrencies); a definition of the concept of virtual assets was included in the Common Dictionary of FATF Standards. According to this definition, a virtual asset is a digital expression of value that can be digitally traded or transferred and can be used for payment or investment purposes. However, in a statement on virtual assets following the plenary meeting, the FATF stated that there is an urgent need for all countries to take coordinated measures to prevent the use of virtual assets for criminal purposes.
Currently, the FATF continues to work on a draft of a new Explanatory Note to Recommendation 15. According to paragraph one of the said draft, for the purposes of applying the FATF recommendations, virtual assets are covered by the concepts of “property”, “income”, “funds”, “funds or other assets” and "appropriate value". The adoption of this Explanatory Note is scheduled for June 2019.
VIRTUAL ASSETS AS A TOOL FOR MONEY LAUNDERING
In 2022, as part of the fourth round of mutual evaluations of member states, the FATF is assessing the national anti-money laundering system of the Russian Federation for technical compliance with international standards (FATF recommendations) and effectiveness. Thus, from the international legal obligations of the Russian Federation it follows that when making a criminal legal assessment of the legalization (laundering) of criminal proceeds, it is necessary to take into account the fact that transactions with virtual assets (cryptocurrency) can be used to commit crimes under Art. 174 and 174.1 of the Criminal Code.
This conclusion is also supported by the provisions of international treaties of the Russian Federation on issues of combating the legalization (laundering) of criminal proceeds, including the Convention. In particular, in accordance with paragraph “a” of Art. 1 of the Convention, the term “income” (derived from the commission of the predicate offense and the subject of laundering) covers “any economic benefit received or derived, directly or indirectly, from the commission of crimes.”
