Business proposed to clarify the application of “entrepreneurial immunity”

The application of “entrepreneurial immunity” when considering the petitions of the investigation to detain businessmen should be clarified taking into account the fact that the presence in a criminal case of state property or damage to an organization with state participation cannot in itself serve as a basis for refusing to apply the restrictions established by law on the arrest of entrepreneurs.

The initiative to determine the procedure for applying “entrepreneurial immunity” is contained in the draft proposals and business ideas collected by Business Russia for the organization’s forum on October 15. The document has RBC, its authenticity was confirmed by a source familiar with the content.

The Chairman of “Business Russia” Alexei Repik told RBC that “the document has a very conditional relation to the agenda of our forum”.

The authors of the initiative note that, despite legislative restrictions on the detention of entrepreneurs in custody, the problem remains relevant. The effectiveness of these rules, according to the organization, is reduced due to “ambiguous interpretation”, in particular, when investigating cases of non-fulfillment of obligations under state and municipal contracts. In this category of cases, the investigation may see intent to embezzle already at the conclusion of the contract, believing that the entrepreneur did not act for the sake of obtaining a legitimate profit, even if a significant part of the obligations was fulfilled.

As a result, such actions can be recognized by the court as not related to entrepreneurial or other economic activities, which allows to detain a businessman. At the same time, the law requires taking into account the possibility of choosing a preventive measure that will allow the accused to continue his business activities. However, according to business representatives, the justification for refusing a softer measure is often limited to the same arguments that the investigation leads: the severity of the crime, the risk of absconding, opposing the investigation or influencing witnesses.

To solve this problem, according to the authors of the initiative, the Supreme Court could explain that the establishment of state or municipal property as the subject of a crime, as well as harm to the interests of organizations with state or municipal participation “cannot be grounds for non-application of restrictions” provided for by the criminal procedure legislation. Part 1.1 of Art. 108 of the CCP prohibits the detention of entrepreneurs on a number of economic crimes. Such a preventive measure is allowed only if the accused does not have a place of residence in Russia, he violated the previously chosen preventive measure or fled from the investigation and court.

The authors of the initiative also drew attention to the need to regulate the timing of the return of property seized during operational-search activities. The materials indicate “unsettled terms of return”: for seized items and materials, with the exception of documents, no deadlines for return or procedural decision. Because of this “unregulated” property may remain with law enforcement for an indefinite period, the draft initiatives note.

In order to exclude such a situation, the authors of the proposal consider it necessary to establish for items and materials related to entrepreneurial activity and seized during operational-search activities, rules similar to those that apply to the seizure of property in criminal cases on economic crimes. In particular, Article 81.1 of the CCP provides that the decision to recognize the seized items and documents as physical evidence must be taken within ten days. In some cases, this period can be extended for another 30 days. If the seized was not recognized as physical evidence, it, according to the law, must be returned no later than five days after the expiration of the established period. They also refer to Part 4.1 of Art. 164 of the Criminal Procedure Code, which prohibits unreasonably applying measures capable of suspending the legitimate activities of entrepreneurs when conducting investigative actions in economic criminal cases.

In an interview with RBC, the head of the Russian Union of Industrialists and Entrepreneurs (RSPP), business ombudsman Alexander Shokhin called for “unambiguous interpretation” of the concept of entrepreneurial activity when choosing a preventive measure. According to him, despite the restrictions set by the Criminal Procedure Code on arrest under business articles, in practice there are differences in what actions fall under this concept. Shokhin stressed that in relation to the heads of commercial organizations conducting entrepreneurial activities, “it is impossible to use arrest”, and the ambiguous interpretation of the law allows additionally to qualify the actions of the accused under more serious articles. “I would like to achieve an unambiguous interpretation here,” the business ombudsman said.

A legislative ban on detaining entrepreneurs for a number of economic crimes was enshrined in 2023, when President Vladimir Putin signed amendments to the Criminal Procedure Code. They provide for the application of softer preventive measures to businessmen and top managers of companies in relevant criminal cases. The bill was submitted to the State Duma in December 2022. As noted in the explanatory note, the purpose of the amendments was “the exclusion of excessive criminal impact on entrepreneurs”.

Attempts to limit the detention of entrepreneurs have been made before. In 2010, representatives of the “United Russia” came up with an initiative to refuse arrest on economic articles, but the relevant bill was never adopted. A year earlier, the State Duma adopted amendments to the Criminal Procedure Code, prohibiting, in particular, the detention of those accused of tax crimes.