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Aleksey Dobrynin on application of art. 210 of the Criminal Code of the RF

At Thursday's meeting of the State Duma interfactional working group for entrepreneurs’ rights deputies and experts discussed application of art. 210 of the Criminal Code of the RF against entrepreneurs. The article also known as the anti-racketeering provision punishes for organization of a criminal community. The business community is concerned with the fact that in recent years the article (which provides for punishment of up to 20 years of imprisonment) is more and more often applied against the accused of economic crimes.

Putin wasn’t heard

In July before the issue was referred to during one of the President’s Q and A sessions, Vladimir Putin ordered the General Prosecutor’s Office and the Investigative Committee of the RF to propose amendments to the legislation before August 1. “The deadline has long passed, but most likely the President's administration prolonged it,” Civic Platform party leader (created by Mikhail Prokhorov) and member of Duma Economic Policy Committee Rifat Shaykhutdinov, who attended the meeting, told Open Media.

On September 27 Shaykhutdinov introduced his bill on limitation of application of art. 210 of the Criminal Code of the RF against businessmen. He proposed not to apply this grave article in addition to already pressed charges under the so-called entrepreneurial or economic articles. According to the explanatory note the measures are directed at additional guarantees to protect entrepreneurs from groundless criminal prosecution.

However Shaykhutdiov’s initiative received a negative response from the government: “The bill’s author failed to take into account that entrepreneurial activity may serve as a disguise for criminal actions, when the legal entity is originally created for such crimes as fraud, illegal banking activity, illegal activity to raise monetary funds or other property and illegal takeovers.”

Shaykhutdinov expressed his readiness to refine the bill.

Following the meeting the deputies decided to address the General Prosecutor’s office to find out how the latter intended to fulfil the President's order.

Business as racketeering

As Public Commissioner for Extradition, Deportation, International and Federal Investigation of Entrepreneurs Dmitry Grigoriadi told Open Media, article 201 of the Criminal Code has been massively applied against entrepreneurs for over 5 years as complementary to main economic articles. The most notorious cases of this sort were those against former minister Mikhail Abyzov, brothers Ziyavutdin and Magomed Magomedov, as well as against Hermitage Capital Management Fund owner William Browder.

Most lawyers think application of the article on organization of a criminal community against businessmen is a pressure tool: Article 210 provides that the defendant may be arrested for an unlimited term with a maximum punishment of up to 20 years of imprisonment without the possibility for parole.

“Entrepreneurs are sent to high security prisons where they do the time with murderers and bandits,” Commissioner for Entrepreneurs’ Rights and Advisor to the President Boris Titov told Open Media. “They are frequently used as cash cows; this is the way the criminal world gets financial inflow.”

“The objective openly declared by law enforcement agencies is to bypass procedural bans and limitations set out for pre-trial restrictions in the form of arrest in case of entrepreneurs,” Aleksey Dobrynin, Head of Criminal Law Practice at Pen & Paper Attorneys at Law, believes. “Regardless of public danger of the incriminated charges under economic articles, if the investigation is also holding someone liable under art. 210 of the Criminal Code, courts satisfy the investigation's motions for arrest, without batting an eyelid.”

According to Grigoriadi, such harsh conditions force people into giving the right kind of statements. “When a person is charged under 210 and given a piece of paper, they are ready to agree to anything,” Dmitry Grigoriadi says. “Because the person understands that it’s very serious and they are unlikely to be released soon.” Often ordinary employees become defendants in criminal cases along with owners of businesses as accomplices: managers and accountants, for instance, and it's their statements that the investigators may wager on.”

Anastasiya Khamburova’s arrest in Rostov-on-Don is another notorious story of this kind: her brother Aleksey Kuznetsov, the owner of Alyans-Agro and Agro-Inform companies, was charged by the investigation with cashing in of money. The businessman himself managed to leave the country before getting arrested, but his sister, who had worked as the company's accountant, remained in Russia and was regularly summoned for questioning. However, last February the investigation, in addition to the economic article which does not provide for imprisonment, decided to apply article 210 of the Criminal Code, after which Khamburova was sent to a detention centre.

Later the charges of organization of a criminal community were lifted off her.

Is the situation changing?

Statistics of the judicial department of the Supreme Court say that over the first 6 months of this year 61 people were convicted under art. 210 — that is slightly more than over the respective period last year (51 convicted over the first 6 months of 2018). However this year 5 acquittals were passed, compared to zero acquittals last year.

Nevertheless, in the cases of these fortunate entrepreneurs only the charges of organization of a criminal community were lifted, and not the charges under economic articles.

This way, in the case of Belgorod Energy Company, the administration of which was sentenced to imprisonment under art. 160 of the Criminal Code (Embezzlement), the investigation was originally charging the defendants with a more severe article 210 of the Criminal Code. The main evidence of the fact that the defendants were members of a criminal community were photos from a corporate party presented at the court hearing. As a result lawyers succeeded to get the charges under article 210 lifted. The convicted are now imprisoned for embezzlement.

Experts of Business Commissioner Boris Titov’s office see this as a turning point in the situation. According to them, a crucial part was played by getting through to the President at the latest Q & A Session.

Kseniya Nazarova