ST 200.1 of the Criminal Code of the Russian Federation.
1. Illegal movement across the customs border of the Customs Union within the EurAsEC of cash and (or) monetary instruments, committed in a large amount, is punishable by a fine in the amount of three to ten times the amount of illegally moved cash and (or) the value of illegally moved cash instruments or in the amount of wages or other income of the convicted person for a period of up to two years, or by restriction of freedom for a period of up to two years, or by forced labor for a period of up to two years.
2. The act provided for in the first part of this article, committed: a) on an especially large scale; b) by a group of persons - is punishable by a fine in the amount of ten to fifteen times the amount of illegally moved cash and (or) the value of illegally moved monetary instruments, or in the amount of the wages or other income of the convicted person for a period of up to three years, or by restriction of freedom for a term of up to four years, or forced labor for up to four years.
Notes.
1. The act provided for by this article is recognized as committed on a large scale if the amount of illegally moved cash and (or) the value of illegally moved monetary instruments exceeds twice the amount of cash and (or) the value of traveler's checks permitted by the customs legislation of the Customs Union within the EurAsEC to movement without written declaration.
2. The act provided for by this article is recognized as committed on an especially large scale if the amount of illegally moved cash and (or) the value of illegally moved monetary instruments exceeds five times the amount of cash and (or) the value of traveler's checks permitted by the customs legislation of the Customs union within the EurAsEC to movement without written declaration.
3. When calculating the amount of illegally moved cash and (or) the cost of illegally moved monetary instruments, from the entire amount of illegally moved cash and (or) the value of illegally moved monetary instruments, the part that is subject to the customs legislation of the Customs Union within the EurAsEC allowed to move without declaration or was declared.
4. A person who voluntarily surrendered cash and (or) monetary instruments specified in this article is exempt from criminal liability unless his actions contain another crime. Their discovery during the application of customs control forms, their seizure during the detention of a person, as well as during investigative actions for their discovery and seizure cannot be recognized as voluntary surrender of cash and (or) monetary instruments specified in this article.
5. For the purposes of this article, monetary instruments are understood as traveler's checks, bills of exchange, checks (bank checks), as well as securities in documentary form, certifying the obligation of the issuer (debtor) to pay funds, which do not indicate the person to whom such payment is made .
Composition of the crime under the article
The object of this offense was social relations that ensure interests in the economic sphere, as well as property interests for buyers.
The objective side was defined as any type of consumer deception during shopping.
The subject of this offense was any goods or funds.
The subject of the offense is money or goods.
The subject was defined as a capable citizen who had reached the age of 16. How can one deduce from Art. 200 of the Criminal Code of the Russian Federation, usually it became the seller himself or the individual entrepreneur for whom the activity was registered. If these persons were not officially registered, then we are talking about another crime, namely fraud.
The subjective side was recognized as guilt in the form of direct intent.
Punishment for smuggling money and monetary instruments
Alternative penalties for simple smuggling:
- a fine in the amount of 3 to 10 times the amount of money illegally moved across the border (or in the amount of the earnings of the guilty person for a period of up to 2 years);
- up to 24 months of restriction of freedom;
- up to 24 months of forced labor.
If we are talking about qualified trains, then the punishment is tougher. For example, the most severe sanction in this case is forced labor for up to 4 years.
Let's consider real cases of prosecution under Article 200.1 of the Criminal Code of the Russian Federation.
In 2022, at the Koltsovo airport in Yekaterinburg, a passenger on the Yekaterinburg-Tashkent flight illegally moved an amount equivalent to 35 thousand US dollars across the border of the Customs Union. The court found the man guilty of committing a crime under Part 1 of Article 200.1 of the Criminal Code of the Russian Federation and sentenced him to a fine of 100 thousand rubles. The illegally smuggled money was confiscated and turned into state income.
And one more example.
A resident of the Novgorod region, located at Pulkovo airport, intended to send more than 1 million 700 thousand rubles to the Republic of Azerbaijan without declaring this amount. The money was discovered during customs control. The Moskovsky District Court of St. Petersburg found the man guilty of cash smuggling and imposed a fine in the amount of his earnings for 2 months. Undeclared funds became the property of the Russian Federation.
Despite the fact that cash smuggling is a minor crime, it should not be underestimated. The fact is that a person found guilty of smuggling is guaranteed to lose the funds transported across the border: sometimes the bill amounts to millions of dollars. To avoid negative consequences in the form of a criminal record and loss of large sums of money, it is recommended to contact a competent criminal lawyer in a timely manner.
Specialization of the norms of the Criminal Code of the Russian Federation in the context of violations in the field of procurement
Co-author: Alexander Lykov
Lawyer at You & Partners
In May 2022, Federal Law No. 99-FZ of April 23, 2018 “On Amendments to the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation” came into force, which strengthened criminal liability for violations in the field of procurement goods, works, services to meet state and municipal needs. First of all, two new crimes have been added to the Criminal Code of the Russian Federation - abuse in the field of procurement of goods, works, services to meet state or municipal needs and bribery of a contract service employee, contract manager, member of the procurement commission.
According to the explanatory note to the bill, in practice there were gaps in the legislative regulation of liability for abuses in procurement. Thus, for a long time the criminal legislation did not contain special articles establishing liability in this area; in judicial practice1 such crimes were usually qualified under articles of the Criminal Code of the Russian Federation on theft of other people's property, abuse of power, including official ones, as well as commercial bribery, giving and receiving bribes.
New crimes
A new article has been introduced into the text of the Criminal Code of the Russian Federation. 200.4 “Abuse in the field of procurement of goods, works, services to meet state or municipal needs.” The subjects of this crime are employees who are not officials or persons performing managerial functions in a commercial or other organization. For abuses in the procurement of goods, works, services to meet state and municipal needs, a wide range of punishments is provided - from a fine to imprisonment, while the upper limit of punishment for a qualified crime is established in the form of imprisonment for a term of up to 7 years with deprivation of the right to occupy certain positions or engage in certain activities for a period of up to 3 years or without it. The qualifying features of this crime are its commission by a group of persons by prior conspiracy, as well as causing damage on a large and especially large scale. Let us note that the amount of large and especially large damage corresponds to the parameters established for the articles of Chapter. 22 of the Criminal Code of the Russian Federation in the note to Art. 170.2.
Another novella - Art. 200.5 of the Criminal Code of the Russian Federation “Bribery of a contract service employee, contract manager, member of the procurement commission.” The new article is designed to counter the giving and receiving of bribes when making purchases and accepting delivered goods, works, and services. Its main difference from Art. 204 of the Criminal Code of the Russian Federation “Commercial bribery” is that in this article the subjects are persons performing managerial functions in a commercial or other organization. In the text of the new article. 200.5 of the Criminal Code of the Russian Federation, the subjects of the crime are contract service employees, contract managers, members of the procurement commission, persons accepting goods supplied, work performed or services provided, or other authorized persons representing the interests of the customer in the field of procurement of goods, works, services to ensure state or municipal needs.
In this regard, there is reason to believe that now the effect of the article of the Criminal Code of the Russian Federation on commercial bribery will not extend to the persons named in Art. 200.5 of the Criminal Code of the Russian Federation. The upper limit of punishment for a qualified crime under this article is established in the form of imprisonment for a term of up to 8 years with or without a fine of up to forty times the amount of bribery and with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to 5 years. .
The stated changes indicate, in our opinion, the “specialization” of the norms of the Criminal Code of the Russian Federation, since new elements of crimes, in fact, clarify the elements of crimes that were already present in the Criminal Code of the Russian Federation. It is expected that such legislative changes should contribute to greater clarity in enforcement. However, in practice the opposite effect is also possible.
International standards and foreign experience
International standards in the field of public procurement provide only general principles for protecting competition and fighting corruption in procurement and execution of government contracts, without defining specific offenses and liability for their commission.
Responsibility is established by specialized international standards in the field of combating corruption, for example the Council of Europe Criminal Law Convention on Corruption (Strasbourg, January 27, 1999), the United Nations Convention against Corruption (October 31, 2003).
The most detailed legal regulation of offenses in the field of public procurement is contained in national legislation. At the same time, the legislation of various countries does not have uniform approaches to regulating liability in this area. Thus, the rules on liability for official crimes in the USA are grouped in 4 key chapters of the US Code of Laws: “Bribery, ill-gotten gains and abuse of position” (Chapter 11), “Elections and political activity” (Chapter 29), “Extortion and threats" (ch. 41) and "Public officials and employees" (ch. 93)2. In countries with a common law system, judicial precedents play a significant role in establishing and clarifying liability for offenses.
In countries of the continental legal system, precedent does not have such significance. In Germany, the bulk of procurement offenses fall under administrative law. Nevertheless, the criminal legislation of the Federal Republic of Germany specifically provides for liability for bribery or receipt of benefits (sanctions for bribery include a fine, imprisonment, deprivation of the right to hold a certain position and confiscation of property obtained by criminal means in favor of the state)3. A description of the elements of these crimes and the sanctions to be applied is contained in section. 30 of the Criminal Code of the Federal Republic of Germany “Punishable acts in the service.”
The Austrian Criminal Code includes the following crimes: entering into an agreement that led to a restriction of competition in public procurement (Artikel 168b des Österreichischen Strafgesetzbuches), fraud (Artikel 146 des Österreichischen Strafgesetzbuches), bribery.
Possible problems
From the text of Art. 200.4 of the Criminal Code of the Russian Federation there is no clear conclusion about what exactly is meant by “abuse” or “violation of the law” in the field of procurement. Is it true that any act, even the most insignificant, that entails a violation of procurement legislation will now be subject to this article? If the norm is interpreted literally, the answer will be positive.
In addition, in Art. 200.4 establishes that an act is considered a crime if it is “committed for mercenary or other personal interest and causes major damage.” That is, to qualify an act as criminally punishable, it is necessary to simultaneously comply with two of the above conditions - selfish or other personal interest and causing major damage. In this regard, it seems logical to supplement the article with a note, where, by analogy with Art. 170.2 (referenced in the explanatory note to the bill), a clear definition of “major damage” will be given.
Several questions arise regarding the wording of Art. 200.5 of the Criminal Code of the Russian Federation, which does not define the minimum amount transferred as a bribe, starting from which criminal liability begins. Based on the wording of the article, receiving any amount or service may be classified as a crime. However, in similar articles of the Criminal Code of the Russian Federation concerning receiving and giving a bribe (Articles 290 and 291 of the Criminal Code of the Russian Federation), as well as in the article devoted to commercial bribery (Article 204 of the Criminal Code of the Russian Federation), the minimum amount of a bribe (bribery) is also not specified.
Main conclusions
Changes to the legislation regulating public procurement procedures are a frequent occurrence (only for 2022 in the text of Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the Law on the Contract System) amendments were made 14 times). However, the previously adopted changes mainly affected the provisions of the Law on the Contract System.
The trend of increasing liability for acts committed by civil servants and representatives of state corporations has been observed in legislation over the past few years. Thus, in 2015, the concept of “official”4 was expanded in relation to Ch. 30 of the Criminal Code of the Russian Federation “Crimes against state power, the interests of public service and service in local government bodies.” The category of “officials” included heads of state-owned companies, state and municipal enterprises, joint-stock companies with state participation (clause 1 of the Notes to Article 285 of the Criminal Code of the Russian Federation “Abuse of Official Powers”). In addition, Law No. 265-FZ established liability for negligence causing particularly large damage (Article 293 of the Criminal Code of the Russian Federation), and introduced administrative liability for failure to fulfill state and municipal contracts.
New amendments to the Criminal Code of the Russian Federation tighten sanctions both in relation to participants in procurement procedures and executors of government contracts, as well as to the organizers of tenders themselves and persons accepting works, goods, and services under government contracts.
1 Examples include the Cassation Ruling of the Supreme Court of the Russian Federation dated October 16, 2012 No. 201-O12-10; Cassation ruling of the Supreme Court of the Russian Federation dated December 26, 2022 No. 19-UD17-38.
2 Title 18 USC June 28, 1989
3 Section 30 of the German Criminal Code “Punishable acts in service” (Strafgesetzbuch (StGB). Dreißigster Abschnitt. Straftaten im Amt).
4 See Federal Law No. 265-FZ of July 13, 2015 “On Amendments to Certain Legislative Acts of the Russian Federation.”
Judicial practice: sentences and punishment under Art. 200.1 of the Criminal Code of the Russian Federation
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