Comments made by lawyer Yevgenia Yevdokimova to the article titled “No records of conviction? We’ll hire you”. Fontanka.ru
People will face more challenges when starting a business and even when finding a job: one should submit a certificate of no criminal record to be registered as a businessman in many areas of activity. According to authors of the procedure, the latter shall, first of all protect children from abuse by evil-doers. In reality, the new administrative barrier can only infringe upon interests of innocent people whereas criminals can easily bypass it.
The so-called “anti-pedophile law” has come into force as early as in the beginning of January, but only on April, 16, the government of Russia has specified kinds of entrepreneurial activity to be covered by this restriction. In addition to educational field this act shall cover any medical practice (inclusive of operating medical laboratories), activity pertaining to production and screening (distribution) of films, work in the area of culture or sports, organizations of leisure and entertainments, fitness and health activity, etc.
Similar limitations are imposed on employees: any employer is liable to ask the hired worker to present a certificate of no criminal record when signing the labour agreement.
Every entrepreneur shall be assigned an individual code
A resolution signed by Prime Minister Vladimir Putin contains codes of All-Russian Classifier of Types of Economic Activity (OKVED), based on which businessmen shall be identified, liable to submit the certificate from police. “On the one hand, it is a matter of necessity to submit such certificate, only if a person intends to perform activity involving minors,” stated Yevgenia Yevdokimova, the lawyer of the law firm S&K Vertikal. “On the other hand the OKVED codes do not differentiate activities depending on whether they are applied to minors or adults. All this, most likely, will result in tax authorities requiring to submit them a certificate of no criminal record as soon as a person quotes the respective codes in their registration statement even if the given person is going to conduct this activity in relation to adults.”
Thus, any person willing, for example, to engage in film distribution, to open a museum, a library, a club, a dental clinic or to provide other services should at first apply to police. One may obtain the respective certificate within a month, while registration as a businessman should take no more than a week.
They plan to partially simplify the procedure since July, 1 - the tax service will be liable to inquire the certificate themselves from the police. The respective draft bill was introduced into the State Duma last week.
They swapped a hooligan for Luis Corvalán
The “anti-pedophile law” qualifies as “dangerous citizens” not only those who are condemned for crimes against sexual inviolability and personal liberty (rape, harassment, etc.), but also those condemned for offences covered by eighteen articles of the Criminal code of the Russian Federation. These include crimes against life and health, freedom, honour and dignity of the person, public health and morality, against family and minors, and against public security. These offences include hooliganism, and non-support, non-compliance with the fire safety regulations and sanitary-and-epidemiologic rules, illegal medical practice and failure to assist sick person, negligent keeping of weapons, etc., irrespective of whether the victims were minors or not.
According to judicial statistics, the share of sentences for the above offences is approximately 23 % whereas the share of sentences for crimes against sexual inviolability and personal liberty (i. e. offences which were initially targeted by this act) make less than one percent! For instance, of more than 870 thousand offenders condemned last year only 8.1 thousand were convicted of rapes or other similar crimes (irrespective of age of their victims). Those who committed such crimes against minors are even less numerous.
Moreover, even those who never were on the dock, but were subjected to criminal prosecution for allegedly committed crime, will also be divested of a right to carry on business and to work in respective fields. The certificate of no criminal record contains the facts of initiation and dismissal of a criminal case. If such dismissal happened based on non-exonerating grounds (for instance, under the statute of limitations), the new law shall qualify a respectable (subject to the Constitution of Russia) citizen as an unreliable individual.
That’s why lawyers deem the law as an anti-constitutional one. For instance, Boris Gruzd of the law bureau Yury Schmidt and partners regards it as an attempt to “beat about the bush”: “Restrictions of somebody’s activities is per se a punishment imposed without delivering a judgement. Moreover, the law is given the retroactive effect, since at the moment the crime was committed, no lifelong prohibition to carry out any activity was stipulated (by legislation)”.
Lawyer Gruzd also reminds of the fact that, according to the Penal code of the RF, quashing or cancellation of conviction shall cancel all the legal consequences related to such conviction. Now even those who committed illegal acts as early as half a century ago shall be unable to register as businessmen or to get a job. For instance, one of most known Soviet “hooligans”, Vladimir Bukovsky, convicted in 1967 for participation in an unauthorized meeting will not be able to start a business.
USSR-wide repeated criminals
At the same time, the very former criminals, including those convicted for serious offences against sexual inviolability and personal liberty, can easily bypass the “anti-pedophile law”, by engaging, particularly, in educational activity, - without visiting “unpleasant ” police departments and without submitting any certificates. After all, the law vests businessmen with the so-called general (universal) legal capacity. “They are entitled to carry out any kinds of activity even those not specified at the moment of registration,” said Nina Kutsova, the lawyer of business practice of Rightmark group. “For instance, a person who stated an intention to engage in construction or in cabbing can legally work in the area of culture or sports.”
Moreover, even a repeat offender is not restrained by the law from establishing an entity (LLC) and, (as its director) from carrying out any activity not subject to licensing, including any activity which involves interaction with children. The point is, according to official interpretation of the Federal Labour and Employment Service, the owner of the company is not liable to conclude the employment agreement with himself, so there is no need to present the certificate even as a pure formality.
According to Yevgeny Vyshenkov, deputy director of the Agency for Investigative Reporting, the former field officer, a certificate which was legally received in police isn't very informative. The point is, the information center of the Central Internal Affairs Directorate for St. Petersburg and Leningrad region has no data on sentences pronounced in other cities of Russia, the FSU countries, etc. These materials are stored in the Main Information Analysis Center of the Ministry of the Interior of Russia (GIAC).
Trying to control people using certificates is devoid of sense, which is confirmed by real-life experience. For instance, Vladimir Volchkov, condemned in 1985, became servant of Themis only 8 years on, moreover, he was employed by the same court that delivered the judgement. The criminal past of judge- recidivist was discovered only after he committed another crime, i.e 12 years on. This being said, according to heads of highest courts, every candidate in judges is almost “probed microscopically”.
Children are our fortune
Employers (school masters, directors of kindergartens, rectors of academic institutions, heads of health care facilities, sport clubs or recreational centres), too, are liable to check people they hire. According to Nina Kutsova, any employer which concluded an employment agreement with no certificate of no criminal record shall incur administrative liability – i. e. penalized for an amount up to 50 thousand rubles, or his activity shall be suspended for a period up to 90 days.
Anyway, businessmen obliged to obtain certificates and to demand them from workers they hire, are not very enthusiastic about the law. For instance, according to Kristina Senotrusova, director of “Planeta detskih prazdnikov Pikalyata” believes that the new measure is merely a facade of care for children maintained by the state. To solve the problem she proposes even more violent measures, “To protect a child from pedophiles, they should oblige a company involved with minors to submit a certificate issued by psychiatrist that would confirm a person’s fitness for interaction with children. Animator’s ability to get on with children is the key factor in organizing children's parties. Important events, such as birthdays, make children overreact to everything around them, and a trifle can grow into a fixation lasting for many years.”
Kristina Senotrusova admitted that she doesn’t yet ask applicants to show certificates of criminal record, “During parties animators very rarely stay alone with children.”
And Tatyana Kalistratova, director of dental clinic DentalOffice, deems the taken measures as necessary, “We’ve discussed them with employees – nobody is opposed to present such certificates, etc., upon request. It is a necessary measure, just as, for instance, in Israel they are searching bags at the entrance of supermarkets. Not to indulge in fetishism, but because this country lives in permanent state of war. And our war is the war against pedophiles.”