The President introduced a bill banning the recognition of business as a criminal community
2019/12/27
Артем Трошин
Уголовная практика
The President introduced a bill banning the recognition of business as a criminal community

The President of the Russian Federation introduced a bill in the State Duma proposing to remove business from criminal liability under Article 210 of the Criminal Code on criminal communities. The draft law prohibits the criminal prosecution of founders, managers and employees of an organisation on the sole ground of the existence of an organised structure. At the same time, a business may be recognised as an organised criminal community if it was deliberately formed for the purpose of undertaking criminal activity.

In fact, this bill is not a reform. The changes are mostly imaginary, as they bring no innovation to legal regulations.

Criminal liability, under Article 210 of Russia’s Criminal Code applies, and will apply, in the event of organising and/or participating in a criminal community, regardless of whether the act is committed in the business field or not. It is important to pay attention to any indications of a criminal community. Criminal law regards a criminal community as:

  1. A structured, organised group, or association of organised groups, acting under the same leadership;
  2. The purpose of the association is the joint commission of one or more serious or especially serious crimes;
  3. The stated crimes should be committed to obtain directly or indirectly financial or other material benefit.

All three signs must be apparent for a group of people (including a legal entity) to be recognised as a criminal community. If any one of the three indicators is missing, article 210 of the Criminal Code does not apply.

Particular attention should be paid to the second feature, stating that the commission of a crime is the primary goal of the association. In practice, there are situations in which a commercial organisation with a branched structure is initially formed to achieve completely legal and socially acceptable goals, such as generating profit, expanding a business, etc. If in the course of its activities though, the leaders, founders or employees committed a crime. Should they be held legally accountable for that crime? Yes, of course. Did they set up a criminal community, as defined by article 210? No, of course not because they did not establish the entity with the express purpose of committing the crimes.

Thus, the amendments proposed by the President do not completely change the current legislation, because the clause in article 210 only applies when the association was arranged to commit serious or especially serious crimes, already in the Criminal Code. Quasi-entrepreneurs who plan to enter into a criminal conspiracy and form legal entities to commit crimes will, in any case, bear criminal responsibility for organising a criminal community.

Institutionally, this bill is a long way from improving criminal law. It could instead be characterised as a political move, to address various to the law enforcement agency mistakes. Even so, it is important to emphasise that the step is quite proper, as it is intended to solve a deep-rooted problem that has often been encountered in forensic practice.