The illusion of humanization: how the Criminal Code is changing

“The trends in changes in criminal legislation now, as always, reflect the general direction of legal and general government policy,” said Sergei Romanov, managing partner of Romanov & Partners Law Firm Romanov & Partners Law Firm Federal Rating. group Criminal law Company profile. According to him, this year this is clearly visible from the stories related to the protection of citizens of pre-retirement age, violations of the law on the Internet, as well as a number of articles related to the criminal liability of entrepreneurs.

Due to the fact that the changes affected a fairly wide range of criminal legal issues, it is hardly correct to talk about pronounced trends, says lawyer Zabeida and partners Zabeida and partners Federal Rating. Group Criminal Law Artem Sarkisyan.

In this case, a certain vector of legislative thought can be noted. It is expressed in the fact that the legislator seeks to create the illusion of humanization of criminal legislation and humanization remains only on paper, and de facto there is a “tightening of the screws”.

Artem Sarkisyan, lawyer Zabeida and partners Zabeida and partners Federal rating. Group Criminal Law

Legislation is being improved every year at an ever-increasing pace, measures are being taken to bring Russian legislation to international standards, says KIAP KIAP Federal Rating lawyer. group Arbitration proceedings (medium and small disputes - mid market) group Compliance group Corporate law/Mergers and acquisitions group (mid market) group International arbitration group Dispute resolution in courts of general jurisdiction group Labor and migration law (including disputes) group Antimonopoly law (including disputes ) group Bankruptcy (including disputes) (mid market) group Intellectual Property (Consulting) group Intellectual Property (Registration) group Family and Inheritance Law group TMT (telecommunications, media and technology) group Land Law/Commercial Real Estate/Construction group Intellectual Property (Protection rights and litigation) Group Criminal Law Company profile Evgeniy Metla. “However, not all changes seem so unambiguous; all that remains is to observe the application of these changes by investigative authorities and courts,” he noted.

Lawyer Yukov and Partners Yukov and Partners Federal rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (major disputes - high market) group Bankruptcy (including disputes) (high market) group Criminal law 4th place By number of lawyers 12th place By revenue 17th place By revenue per lawyer (more than 30 lawyers) Company profile Yakov Gadzhiev gave a more harsh assessment of the changes: according to him, the general trends in changes in the criminal procedural nature are inquisitorial in nature and are aimed at tightening a number of norms, especially if there is any informational reason for this. And many legislative initiatives to mitigate the liability of entrepreneurs and humanize existing legislation are faced with the fact that the changed norms are not applied in practice.

Next - about the most noticeable changes in the Criminal Code over the past year.

"A day in two"

Perhaps the most resonant change of all in the criminal law over the past year. The bill, first proposed back in 2008 (!), was remembered last year and hastily passed.

Now one day in a pre-trial detention center is equivalent to one day in prison and special and strict regime colonies, one and a half days in a general regime colony and educational colony, and two days in a settlement colony.

Metla explained the changes by the fact that the conditions in the pre-trial detention center are “equated to prison,” while it is impossible to determine with certainty whether a person will be sentenced to a prison sentence, because most of the defendants are ultimately sent to colonies, the conditions of detention in which are much more humane.

The norm has been in effect for less than a year, but the Federal Penitentiary Service has already reported on the practice of its application: 10,402 people were released from prison thanks to the recalculation of their sentences, and another 85,916 convicts received a reduction in their sentences.

Federal Law of July 3, 2021 No. 186-FZ.

Punishment for leaders of criminal communities

The Criminal Code was supplemented with a new article. 210.1 – “Occupying the highest position in the criminal hierarchy.” Punishment – imprisonment for a term of eight to 15 years, a fine of up to 5 million rubles. (or without it) and restriction of freedom for a period of one to two years.

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The current Art. 210 of the Criminal Code, at the initiative of the president, was supplemented with a new part 1.1. It provides for liability for “participation in a meeting of organizers, leaders or other representatives of criminal communities or organized groups.” Punishment – from 12 to 20 years in prison. The minimum term of imprisonment for participation in an organized crime group was also tightened - from five to seven years. This excluded the possibility of a suspended sentence under the article. In addition, the courts were prohibited from imposing punishment below the minimum for these offenses.

These changes may put managers of legal entities, entrepreneurs and beneficiaries of legal entities under additional stress, Romanov warns. If earlier Art. 210 of the Criminal Code was widely used by investigators to prosecute the management of legal entities in the case of, for example, missing the statute of limitations for other crimes incriminated against them, then the introduction of this norm into the law could “additionally, probably artificially and excessively” aggravate the position of senior managers and owners of legal entities.

Federal Law of April 1, 2021 No. 46-FZ.

Responsibility for unfair practices in procurement

There was a punishment for “kickbacks” - abuses in the field of public procurement committed for self-interest by persons who are not officials and do not perform managerial functions in a commercial organization. If the “kickback” caused major damage, the offender faces three years in prison (instead of the previous 50,000 rubles). Otherwise, he will be brought to administrative responsibility.

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Criminal liability now also applies for bribery of a contract service employee, contract manager and other persons representing the interests of the customer. The punishment for this is up to three years in prison or a fine of up to 200,000 rubles.

Another crime was provocation of bribery in the procurement of goods, works, and services to meet state or municipal needs. Moreover, the reward is over 150,000 rubles. is considered a large amount of bribery, and over 1 million rubles. - especially large.

Federal Law of April 23, 2021 No. 99-FZ.

Mitigation of “entrepreneurial” articles of the Criminal Code

An entrepreneur can avoid criminal prosecution for certain crimes if he compensates the damage to the victim or the state. Criminal cases on several counts of fraud can now be terminated, but only if the accused has compensated for all the damage caused. In addition to fraudulent charges, the article on violation of inventive and patent rights, misappropriation or embezzlement, and causing damage by deception or breach of trust was “mitigated.”

The new opportunity to terminate criminal cases against entrepreneurs in case of compensation for damage seems to be some relaxation against the general background of “tightening the screws”, but in fact this is a technique elevated to law by investigators, forcing the defendant to admit to committing criminal acts for their classification under a less serious article, Romanov is sure .

In the presence of such a rule, the “customers” of criminal cases receive a powerful legalized lever of influence over entrepreneurs, the lawyer believes.

In the context of the abundance of “custom” criminal cases and the notorious reluctance of investigators to establish the objective truth for the sake of the need to obtain a guilty verdict, such a rule looks like an offer that is almost impossible for a businessman who has come under criminal prosecution to refuse, regardless of his actual guilt.

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Sargsyan agrees: the provisions proposed in the bill are “half-measures” that, in the absence of an integrated approach, will not solve the problem of unfounded prosecution of entrepreneurs, but will only create additional loopholes that the investigative authorities will actively use.

Federal Law of December 27, 2021 No. 533-FZ.

Parole - earlier

In 2021, Art. 80 of the Criminal Code, which provides for the replacement of the unserved part of the punishment with a more lenient form. Now, replacing imprisonment with a more lenient type of punishment is possible after actually serving a quarter of the term (previously - a third of the term) for a crime of minor gravity, a third of the term (previously - half the term) for a serious crime and half of the term for a particularly serious crime (previously - two thirds). deadline). In addition, the same amendments prohibited courts from using forced labor in cases where the imposed sentence exceeds five years.

The current state policy is characterized by a formulaic principle of solving emerging problems, and the lack of flexibility in its approaches leads to the use of authoritarian methods in pre-trial detention centers and other correctional institutions. It seems to me that this is one of the main reasons for the introduction of norms mitigating the fate of those sentenced to imprisonment,” he added.

Federal Law of December 27, 2021 No. 540-FZ.

Unjustified dismissal

Art. 144.1. It established liability for “unjustified refusal to hire or unjustified dismissal of a person who has reached pre-retirement age.”

According to Romanov, the new article risks becoming “dead.” “Even after this norm comes into force, unscrupulous employers will not feel the changes, since the check on the report of a crime will be divided into the presence of documentary evidence of the legality of the dismissal,” he explained. Sargsyan expressed a similar thought: “Upon closer examination, it becomes obvious that the norm is declarative in nature and the norm will most likely be dead.”

He also does not rule out that this article could be used “indicatively” - in order to demonstrate the efficiency of the norm as a tool for protecting older citizens. “The initiation of such a criminal case may become the basis for further inspection of the entire business activity and the establishment of more serious crimes,” he warns.

Federal Law of October 3, 2021 No. 352-FZ.

And over the past year:

The punishment for theft from bank cards has been tightened (Federal Law No. 111-FZ of April 23, 2021).
Criminal liability was introduced for failure to comply with a decision to remove defamatory information from the Internet (Federal Law No. 348-FZ of October 2, 2021).
Article 282 (“repost-extremist”) was partially decriminalized. Criminal Code (Federal Law of December 27, 2021 No. 519-FZ).
The liability of employers for accidents at work has been tightened (Federal Law No. 114-FZ of April 23, 2021).
Criminal liability was introduced for escaping from the scene of a “fatal” accident (Federal Law No. 65-FZ of April 23, 2021).
The penalties for organizing gambling have been tightened (Federal Law No. 227-FZ of July 29, 2021).
Established liability for entering into the register of securities owners or into the depository accounting system obviously incomplete or unreliable information (Federal Law of December 27, 2018 No. 530-FZ).

The range of subjects of crimes against state power has been expanded

Law No. 16-FZ dated February 24, 2021 amended Note 1 to Article 285 of the Criminal Code of the Russian Federation, which explains the concept of an official.

Now, employees of state extra-budgetary funds and public law companies are also responsible for crimes provided for in Chapter 30 of the Criminal Code of the Russian Federation, including exceeding and abusing official powers, taking a bribe, etc.

More details:

Pension Fund officials and state corporations can now be punished for abuse of power More details

The changes came into force on 03/07/2021.

Amnesty in 2021 in Russia

So far there is no reliable information regarding a possible amnesty this year, but there are assumptions that it will be announced on the seventy-fifth anniversary of Victory in the Great Patriotic War. In total, two projects were submitted to the president of the country, and he must choose the most optimal document, in his opinion.

An amnesty in Russia in criminal cases, if the HRC’s proposal is supported by State Duma deputies and the President, will be announced in May 2021. The latest news from the State Duma confirms this.

The decision of the Human Rights Council, adopted unanimously at its meeting, became known in early April. The members of the Council decided to come up with the initiative in advance, as the Chairman of the HRC explained to journalists, in order to have time to study the proposal. From his words, it becomes clear that if the project is approved, Russia will receive a truly broad amnesty in 2021. No details of the proposal are yet known.

In any case, the draft resolution will be available on the State Duma website after it is submitted; the official text will be published by Rossiyskaya Gazeta only after its adoption.

Intentional bankruptcy and illegal actions during bankruptcy are punished more severely

Law No. 241-FZ dated July 1, 2021 made adjustments to Articles 195 and 196 of the Criminal Code of the Russian Federation. Thus, criminal liability for deliberate bankruptcy and illegal actions during bankruptcy has been tightened:

for arbitration managers;
chairmen of liquidation commissions;
persons controlling the debtor and their managers;
persons who committed crimes by a group of persons or an organized group;
persons who committed crimes using their official position.

In addition, Article 195 of the Criminal Code of the Russian Federation was supplemented with a note allowing those who first committed crimes under Art. 195, 196 of the Criminal Code of the Russian Federation, subject to active repentance and real compensation for damage.

The changes took effect on July 12, 2021.

Liability for driving while intoxicated has been tightened

Law No. 258-FZ dated July 1, 2021 introduced many changes to Article 264.1 of the Criminal Code of the Russian Federation:

The name of the norm has been clarified:

The penalty for drunk driving by a person with a criminal record under Art. 264 of the Criminal Code of the Russian Federation, if the violation resulted in the infliction of serious harm to health or the death of one or more victims, the perpetrator faces up to 3 years in prison instead of the previous two.

The changes took effect on July 12, 2021.

Criminal liability has been introduced for illegal issuance of consumer loans

Law No. 215-FZ dated June 11, 2021 introduced a new article 171.5 “Illegal activities related to the provision of consumer credits (loans)” to the Criminal Code of the Russian Federation.

Heads of organizations or individual entrepreneurs are subject to liability, provided that the amount of loans issued exceeds 250,000 rubles. The composition provides for administrative prejudice - the culprit must have previously been subject to administrative punishment under Part 2 of Art. 14.56 Code of Administrative Offenses of the Russian Federation.

The changes took effect on June 22, 2021.

Time spent in a pre-trial detention center: amended daily registration procedure

The main innovation concerned the seventy-second article of the Criminal Code. This edition, which became effective on July 10 of this year, of the third paragraph of this article approved the new counting of the days that a prisoner spends in pre-trial detention before a verdict is passed by a court decision. After the final implementation of the law, the period will be counted as follows:

Places of forced labor - a day for eight hours worked.
Places of correctional labor - a day in a pre-trial detention center for the past three days.
Places of restriction of freedom - a day in a pre-trial detention center over the past two days.
Disbat - a day in a pre-trial detention center for one and a half days.