Anton Imennov: Caution, art: how art workers get involved in criminal cases. Forbes, 18 August 2018

Two tendencies have intensified recently: to look for and ''find" signs of "extremism" of all  sorts in works of art, and also to look at civil-legal relations through the prism of criminal law. 

At present art, theatre and cinematography in particular, is in the area of legal risk. It is because of the sudden contradiction between the longstanding customs of business turnover and the current legislation, or due to the changes both in the application of the law and the "general course". 

Examples are well known. They are Kirill Serebrennikov, and film director of "Matilda" Aleksey Utchitel, and the current situation with the film "VMayakovsky" of Alexander Sheyn. According to mass media's anonymous 'sources', somebody must have suspected a theft of ₽1 m allocated by the Cinema Fund as a subsidy for making the film, and therefore, film-maker Sheyn must be punished at once.

A tendency to search for and "find" signs of "extremism" of every kind in works of art has obviously increased: actions aimed at "arousal of hatred or enmity, destruction of dignity of a person or a group of people", and also "insult" of various feelings and attempts of criminal prosecution of authors and executors under such charges (clauses 280, 282, 148 of the CC RF).

Vague formulations in the legislation may be understood and interpreted in different ways. It often leads to unreasonable criminal prosecution, provokes persecution supported by people in uniforms and robes. 

The problem is that there is a new tendency to look at the civil-legal relations through the prism of the criminal law. Let's have a look at purchasing or the civil-legal aspect. Peculiarities of the 44-FL "On the contract system in the area of purchasing goods, works, services for provision of the state and municipal needs" which guides the state purchases, are well known. But the law does not always work when applied to a creative process. 

The mane problem at the stage of the fulfilment of a contract is changing the important conditions of a contract. It happens because the process of making a film or a performance is a creative one, where requirements to the scenery and performers change in the course of action. And it is impossible to change the subject of a contract (scenery size, costumes colours and so on) in a legal way. It is important that making changes in crucial conditions of a contract is a breach of not only a purchasing legislation, but an anti monopoly as well, for, making changes in a contract at the stage of its realization is nothing but making preferences for a particular participant, and that may lead not only to administrative responsibility, but to a criminal one. 

The next problem is the maximum size of a state purchase advance which is equal to 30% of the contract price. The main partners of establishments of culture are subjects of small entrepreneurship or natural partners who can't work without prepayment and can't invest their own money. Therefore a 30% advance is not enough for them to fulfil their contract and often even to start the fulfilment of their obligations under contract (e.g., a 30% advance isn't enough to buy materials to make costumes). But work must be done somehow. So, people do work bypassing the not clever law: they fictitiously issue executive documentation to show the fulfilment of a contract on paper and get their money. This money is not stolen but used to make a film, performance or other creative product. 

But here is the source of the main and heavy risks (in case of the state subsidizing) of the criminal-legal punitive measures under clauses 159 ("fraud"), 160 ("perjury"), 174 ("legalization"), 199 ("tax evasion") of the Criminal Code. 

How do the civil risks become criminal ones? Let me give several examples from our practice. 

The Cinema Fund allocated money to make a film, a contract for subsidizing was concluded. After that a film director was visited by a muse again. As a result an agreed plot and script underwent a 60% change. But, the film wasn't made in due time, and the budget money was spent. The law-enforcement tried to qualify it as criminal fraud in accordance with their custom. Unsuccessfully. 

Here's another example. It is often necessary to pay in cash for a one-time service during film-making. These payments may occur spontaneously and can't be planned and foreseen beforehand. The issue becomes especially pressing in expedition circumstances when, for instance, a film-making team must get to an island somewhere in Archangelsk region where boats can be provided only by local fishermen. Then the payment is made in cash, without a contract with a boat owner and without a record in an account book respectively. 

And, of course, nobody pays a personal income tax. This may get under clause 199 of the CC of the RF. 

It is clear that the system of the state purchases must be reformed. After reporting on this issue at the round table in the Council of the Federation I have a feeling that the upper Chamber can play first violin, and we, advocates, as experts are ready to point out narrow places and work at them jointly. 

It is more difficult to deal with the law-enforcement. They still fail to realize that in order to prosecute someone it is necessary to establish that there is a big public menace in the actions, and, most importantly, that a person had an intent to commit a certain acquisitive crime, i.e. the situation can't be resolved in the field of the civil law. I suppose that judges could help with the legal education of the operational-investigative body. Then it would be possible to stop unreasonable criminalization of the normal economic and creative activity by means of explanations of the Supreme Court and establishment of an adequate judicial practice in concrete cases. 

Besides, experience of foreign colleges must be taken into consideration, even at the stage of legal experiment yet. Thus, in the Republic of Kazakhstan, according to the Prosecutor General's order from 19 September 2014 number 89, if there is proof that an action is the subject of civil-legal relations (which can be supported by contracts, receipts, commodity cheques and so on), it cannot be the object of criminal examination before the court decision on the civil case is passed. A person may apply to the law-enforcement only after a corresponding decision is passed and the facts are established by the court.

In the end I would like to appeal to art workers. My thought is quite simple: carrying out your creative activity you participate in civil-legal relations, therefore, you bear the same entrepreneurial risk as the others. Indeed, the law is tough and sometimes unjust, but it is uniform for everyone. 

Anton Imennov, advocate, Pen & Paper Moscow office managing partner