A special article “fraud in business” (Art. 159.4 of the Criminal Code) must be changed. Such a decision on Thursday adopted the Constitutional Court. The judges acknowledged that the provision violates the principles of equality and allows you to assign different penalties for similar offenses, thus contrary to the Constitution.
«Fraud in a large scale is a felony, and a similar act in business – misdemeanor . Accordingly, the entrepreneur will be able to convict before to ask for parole, to seek removal of a criminal record and receive a number of other preferences in terms of the Criminal Code “- believes the court.
The definition of the amount of damages under Art. 159.4 of the Criminal Code also occurs otherwise than under Art. 159 of the Criminal Code. Thus, specialized norm establishes that major damage is considered to 1.5 million rubles., And especially large – 6 million rubles. The general article on fraud considers particularly large damage already stealing from 1 million rubles.
When reading the decision, the Chief Justice Valery Zorkin said that the Constitutional Court does not limit the right of the legislature to allocate special formulations of fraud and to protect honest entrepreneurs from unreasonable harassment .
Now, within six months of the legislature should amend the impugned article, making penalties for ordinary fraud and fraud in business proportionate if this is not done, the rate automatically lapse COP decided.
mitigate or toughen
Commenting on the decision of the COP, Zorkin noted that in any civilized country does not have a similar article: “There are constitutional principles of equality before the law, it does not matter You oligarch, or a simple manager. ” According to him, the impugned norm represented preferences, such as builders of houses, has not fulfilled obligations to ordinary people. “For example, build a house on 250 apartments, and the developer has collected cash and left for warmer climes – now he will face penalties of up to five years in prison, but if a person stole one apartment with my grandmother – just 10 years” – an example Zorkin.
He said that the court did not put insufficient punishment, it is a question of proportionality. At the discretion of legislators question remains: to increase the sentence for a specialized article or decrease on the total. “Let the legislator decides. He wants six, seven or 10 years, but the punishment must conform to the principles of proportionality, “- said Zorkin. But if the legislator is not defined, then it simply does not want to, this rule has acted.
«COP decision binding, the State Duma must now amend and strengthen the punishment, the other question is how,” – said a member of the constitutional committee of the lower house, the former prosecutor Vladimir Ponevezhsky. He noted that even if the changes are made, they do not extend to those sentences that the courts will make prior to their adoption. The next six months, according to the deputy, the courts continue to hear cases under the current norm of Art. 159.4 of the Criminal Code.
reverse liberalization
«Enterprise” article appeared in the Criminal Code only in 2012. The idea of differentiation of Art. 159 of the Criminal Code proposed business ombudsman Boris Titov. Then agreed with him, Prime Minister Dmitry Medvedev, agreed that the article “fraud” is used to manipulate and it should be changed. E dinaya criminal article 159 was divided into six compounds, one of which was fraud in business. Then this reform came in the so-called fourth package on liberalization of criminal law in the economic sphere. In its opinion sent to the Constitutional Court, Titov said that Art. 159.4 of the Criminal Code does not confer a special legal status of entrepreneurs, but only details the article “fraud” on the basis of the scope of the commission. Note Titova Thursday RBC could not be obtained.
How to accept and cancel “Medvedev’s liberalization” of the economy
«tortured check and all kinds of assaults on commercial interference. In general, it is necessary that our law enforcement agencies, and authorities stopped scaring business “- with this phrase, delivered in summer 2008. President Dmitry Medvedev began a period of” Medvedev liberalization ».
In March 2010, the bill was designed to ease untried businesses preventive measures: expected to release them on bail or bail in the amount of 100 thousand. rubles to 500 thousand. This measure proved to be one of the most successful: judges increasingly decide replace detention to house arrest.
Since December 2011 criminal cases on tax violations by the decision of Medvedev could excite only on the basis of submissions by the tax authorities. In October 2014, President Vladimir Putin returned to the UK the right to bring proceedings for tax crimes: he signed the law under which the investigators sent materials inspections FTS, and if after 15 days the tax authorities have not sent a reasoned opinion no violation – you can proceed with the case. And if there is “sufficient evidence” case can be initiated until the conclusion of the tax revenue.
In December 2012, an article appeared in the Criminal Code “Fraud in business” (Art. 159.4 ). The maximum penalty for its violation twice in less than a violation of Article 159 of the Criminal Code (fraud) – five years in prison. Two years later, the Constitutional Court found the “business” part of an article contrary to the Basic Law.
«I think that entrepreneurs will not be happy about this decision – said the head of the expert legal services business -ombudsmena Alexey Ryabov. – Entrepreneurial activity is associated with increased risk and a person can be placed in the external environment such conditions, it is unable to fulfill its obligations ».
The judge of the Constitutional Court, retired, who requested anonymity, declined to comment on the decision, do not read the text but noted that increased penalties entrepreneurs is at odds with the message of the president and generally with the same position of the COP on the liberalization of the law.
Case Judge Yakovlev
A complaint to the Constitutional Court addressed the deputy chairman of the City Court of Salekhard Daniel Yakovlev. He asked to recognize art. 159.4 of the Criminal Code unconstitutional and insisted that this rule provides concessions to entrepreneurs by highlighting them in the privileged class, and violates the principle of equality of all before the law.
Speaking before the Constitutional Court, Yakovlev noted that Art. 159.4 of the Criminal Code provides for a much more lenient sanction compared to the total item. 159 of the Criminal Code. For example, the maximum penalty is only 5 years old when the sanction of common article allows imprison for 10 years, and the statute of limitations on the “business” article – 6 years rather than 10. To serve as their employers can in a penal colony, rather than a general regime like everyone else.
According to the statistics of the Judicial Department of the Supreme Court, in 2013, according to the article. 159.4 of the Criminal Code were convicted 290 people, but only 13% (39) were sentenced to real imprisonment in the colonies. The average sentence was only three years old. During this same time, the usual art. 159 of the Criminal Code were convicted 19,663 person. Last year 601 the sentence was renamed to Art. 159.4 Art. 159 of the Criminal Code.
Judge Yakovlev noted that because of the small statute of limitations, many cases are terminated prior to sentencing. According to him, in 2013 Salekhard Court examined six cases a special article, but none of them did not end the sentence. Yakovlev argued that such a situation throughout the country.
Now, in the production of Yakovlev is a criminal case general director of OOO “Business Yamal” Sergei Sleptsov. His firm has entered into contracts for the supply of building materials, took prepay customers, but not the obligation to execute and, according to investigators, thus kidnapped more than 7 million rubles. In accordance with applicable laws case should be dismissed due to the expiration of the limitation period.
Security officials for tougher
At the meeting of the Constitutional Court judges supported the arguments of law enforcement agencies: Prosecutor General’s Office, the Investigative Committee of Russia, as well as the Ministry of Internal Affairs suggested that the law some changes.
So the representative of the Prosecutor General Tatyana Vasilyeva noted that the legislator really put entrepreneurs in more carefree conditions in relation to the ordinary citizens. According to a representative Raman George Smirnov crime in business are much more dangerous, because it affects the interests of consumers, which is easier to fool.
The representative of the Ministry of Internal Affairs Hayk Marjan, in turn, said that the agency has drafted a bill, which would exclude from the impugned article and individuals accused of fraud in government contracts.
At the same time insisted on the validity of the norm representatives of the State Duma and the Federation Council Dmitry Vyatkin and Alexander Solomatkin. They supported and authorized representative of the President for Human entrepreneurs Ryabov.
To make a decision the Constitutional Court took a month and a half.
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