Comments made by Vladimir Alyoshin on the draft law on humanization of criminal law

8 November 2011

Dmitry Medvedev's project to humanize criminal law will soon be implemented: such acts as smuggling, defamation, personal injury, etc., shall no more be deemed as offences as early as the end of the year. People who have moved goods illegally across a border for several million roubles, illegally used other person’s software, etc., shall not face jail any more. Moreover, businessmen will have the opportunity to pay off for economic offences which they may be incriminated in subject to most applicable articles of law.

The draft law introduced by the president of Russia this June, has passed in a second reading on November 1; the draft law will receive final approval at the earliest sessions of the federal parliament. “Humanization” will apply in respect to all persons against whom criminal proceedings have already been instituted. After all, subject to the Russian Constitution, the law improving situation of accused persons has retroactive force. Therefore, hundreds of St. Petersburg businessmen caught in tax dodging, smuggling, illegal business or banking activity, intentional bankruptcy and other offences, shall be granted the right to buy their way out.

“Aristarkh, settle the deal with the customs man”

Such reform (first of all, in respect to economic offences) triggered by corrupt practices of the law enforcement system, mass corrupt practices brought to light when investigating economic crimes. For the same reason, 1.5 years ago they included into the law the ban to take into custody any suspected persons or those accused of tax dodging and other misdeeds of a like nature. Once again, it was done at the instigation of Dmitry Medvedev.

According to the head of state, the need for decriminalization of so-called goods smuggling is also a long-standing issue. The explanatory note states that “It should be emphasized that, in countries with stronger legal systems, smuggling of goods which are not on the prohibited articles list is not deemed a crime. Analysis of practice in the application of the first part of article 188 of the RF Criminal code suggests that this norm is promotive to corruption.”

The said article is completely excluded from the draft law under consideration by the parliament. However, this is not to say that businessmen illegally moving lots of merchandises across the border, etc., are shielded from legal action. “Any activity earlier qualified as smuggling, will now be qualified as delinquency in payment of customs duties imposed on organizations or individuals, subject to article there 194, the RF Criminal Code,” said Sergei Tokarev, Senior Associate of Pen&Paper. “Other infringements (improper execution of documents) will be sanctioned as administrative offences.”

Moreover, a number of new articles will be included into the Criminal Code of the Russian Federation concerning sanctions for moving some types of articles illegally across the border such as arms, drugs, nuclear materials, cultural valuables, as well as “strategic goods” (the list of strategic goods should be drawn by the Russian government). The last version of such list which was used in regulation of external economic activity in the middle of 90s included almost all goods traditionally exported from Russia - crude oil and petroleum products, ferrous and non-ferrous metals, timber, sawnwood, cardboard, metal scrap, grain and a score of other goods.

And still, it will be much more difficult to hold criminally liable the director of a company, who has illegally imported a lot of merchandise (computers, dresses, etc.). Currently, the customs officers only have to prove that the cost of undeclared goods exceeds million roubles, whereas, subject to amendments, article 194 of the R F Criminal Code will only apply to cases, when the sum of unpaid customs duties is no less than two million roubles for an entity or an individual. For instance: On November, 3 the Baltic Customs House reported that they discovered a smuggled lot of palm oil priced at 3.5 million roubles. However, the economic damage done to the state is valued only at 1.5 million roubles, and therefore, according to Sergei Tokarev, the case initiated should be dismissed after the entry into force of this draft law.

However, the common folk, caught in the illegal import of high-priced goods may be treated not so humanely, in pursuance with these amendments. In fact, as opposed to sanction for smuggling provided by the current Criminal Code of the Russian Federation, administrative liability includes not only a two- or three-fold fine, but also confiscation of goods. For instance: a certain Morozov tried to illegally move Breguet watches (valued at 2.4 million roubles) through the green channel of Pulkovo airport. Moscow district court found him guilty of a criminal offence, inflicted a penalty of 100 thousand roubles, and obliged to return the seized watches to the owner.

After cancellation of article no. 188 of the RF Criminal Code, the unlucky smuggler shall be, within the context of administrative case, deprived of their property, and obliged to pay a penalty of 4 million roubles or more.

A total of 550 legal proceedings (71 of them involving drugs) related to smuggling were initiated by the North-Western Operational Customs House over the first nine months and only 45 legal proceedings related to non-payment of customs duties. So, the total amount of criminally prosecuted misdeeds can decrease tenfold in the near future.

The North-Western Customs Administration refrained from making any comment, while, explained that they will abide by the law after its entry into force. The regional transport prosecutor's office was also unable to give an opinion of potential consequences of “humanization”.

Those who stole one rouble shall pay six

Other provisions of the Criminal Code underwent similar “humanization” as well. For instance, no criminal sanction shall be imposed for defamation, personal injury, violation of gender equality, and other misdeeds. Copyright violation shall only be prosecuted should the amount of damage exceed one hundred thousand roubles, etc.

It was also resolved that any first offender which committed a minor offence shall only be penalized by imprisonment in the presence of aggravating circumstances. Compulsory labor should be the alternative to penal colony: an accused person shall work in specific correctional facility for up to 5 years, and 5-20% of their wages shall be paid to the state budget.

The court can grant a 8-year reprieve to the drug addicts willing to undergo course of treatment, and in case of successful treatment, the court can release an accused person sentenced to serve in a penal colony (correctional facility). The explanatory note to the president’s draft law states that “The draft law therefore provides additional stimuli for addict first offenders to undergo a course of treatment as well as for subsequent social adaptation of such accused persons.”

Businessmen which committed minor economic offences (a total of 120 sentences for such offences are passed every year) for the first time, will also be granted a special “indulgence”: they shall be relieved from any criminal liability, should they indemnify individuals or entities for all the damage done, and pay five-fold stolen (unpaid, etc.) amount to the federal budget.

Lawyers are ambiguous about such amendments. For instance, Vladimir Alyoshin, the chief consultant in criminal law of the law firm “Vertikal” cannot rule out the possibility that one more opportunity for corrupt practices emerged due to this innovation. Actually, the right to evaluate the damage done to the state is delegated to respective tax, customs, etc. agencies, “One may pay one million to the state, or ten thousand to the state budget and two hundred to a state official. Do you feel the difference?” he said musingly.

A somewhat similar model has already been adopted from this May and is to be applied to persons caught in corrupt practices: Instead of imprisonment, they may be sanctioned for bribes and corrupt business with a fine divisible by the sum of bribe. However, as opposed to businessmen, officials or any other persons which committed these misdeeds shall not only part with a large amount of money (up to half billion roubles), but will also suffer conviction, with all the consequences that come with it.

Anton Odynets, 

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