The rapidly changing political situation in the world that among other things is reflected in the application of bilateral economic measures reverses the external and internal market conjuncture. These conditions decrease national security that should be inevitably reflected in the state criminal law. In view of the above, the main goal of the research is to understand if there is a need to criminalize certain acts in the field of foreign economic activity in the context of world geopolitical transformation. The author used methods of scientific cognition, consistency, analysis and legal comparison. The author’s position is based on current legislation, opinions of the competent scientific researchers and law enforcement practice concerning matters on criminal legislation development and law enforcement in the field of economic security. The author examines issues concerning grounds for the criminalization of acts and degree of public danger along with national security of economic offenses. As a result the author comes to the conclusion that it is necessary to respond promptly to changes in social relations in modern conditions, including departing from the previously approved strategy for development of criminal legislation.
Key words: criminal law; criminalization; economic crimes; foreign economic activity; entrepreneurship; economic sanctions; Eurasian Economic Union; EAEU; smuggling.
Разработка эффективных уголовно-правовых мер противодействия внешнеэкономическим преступлениям
Introduction
Establishment of a regulatory framework that began in Russia in 2009 was supposed to improve criminal law on economic security in order to promote entrepreneurship. In that respect the Concept of modernization of criminal legislation in the economic sphere was drafted in which it was stated that the content of the “economic block” of the Criminal Code of the Russian Federation has criminalized many aspects of entrepreneurship which in its turn became a major problem for the development of this area [4, p. 42]. In order to contribute to a great qualitative leap in the national entrepreneurship the Russian Government proposed to decriminalize certain economic crimes.
In this regard provisions of the Messages of the President of the Russian Federation to the Federal Assembly of 2018 and of 2019 became main guidelines for the criminal policy development concerning entrepreneurship. The main idea of these Messages was that the State should ensure the highest level of entrepreneurial freedoms and prevent business community from criminal prosecution as an instrument of pressure [5, p.10]. As a result, a range of acts were adopted in the period from 2016 to 2020 that were aimed at reducing the level of criminal law impact on entrepreneurship that, in particular, concerned criminalization of illegal initiation of a criminal case if this act was committed in order to interfere with entrepreneurial activity and entailed its termination, differentiation of criminal liability for fraud, increasing the large and especially large size of criminal offenses, etc. [9, p. 106].
As an implementation of this concept Article 188 of the Criminal Code of the Russian Federation was decriminalized. This change was explained by the fact that smuggling of goods that were not prohibited for circulation was not recognized as a crime in countries with developed legal systems. Such smuggling as a rule is carried out in order to evade payment of customs duties and the responsibility for that is fully provided by Article 194 of the Criminal Code of the Russian Federation.
Despite the existing potential for the development of state friendly entrepreneurial environment as well as improvement of economic stability, emerging threats of a complex nature to the national security have a significant impact on Russian criminal law development.
Criminal policy development in the context of the imposition of economic sanctions
Russian economic system that has faced negative impact of economic and political measures supported by a number of foreign states is alarming.
In order to protect national economic security the President of the Russian Federation by the Decree of August 6, 2014 No. 560 instructed the Government of the Russian Federation to establish bans or restrictions on implementation of foreign economic operations that involved import into the territory of the Russian Federation of certain types of agricultural products, raw materials and food from states that made a decision to impose economic sanctions against Russian legal entities and (or) individuals or that joined such decisions [1].
As part of the implementation of that Presidential Decree, the Resolution of the Government of the Russian Federation No. 774 of July 31, 2015 on Approval of the Rules for the Destruction of Agricultural Products, Raw Materials and Foods Included in the List of Agricultural Products, Raw Materials and Foods, the country of origin of which is the United States of America, European Union Member States, Canada, Australia and the Kingdom of Norway that are prohibited from being imported into the Russian Federation was adopted [2].
The situation was aggravated by the fact that unscrupulous entrepreneurs took advantage of the free movement of goods on the territory of the Eurasian Economic Union and in the short term Member States of the Union became the largest transshipment bases of «sanctioned» products on the territory of the Russian Federation occupying 15.5% of the Russian import market whereas in 2013 the share of such products did not exceed 3.9%, and in 2012 it made only 0.9%.
Counteraction to the most dangerous threats to the national economic security and particularly crimes should be ensured through criminal law application that should correspond to the role of the state as a guarantor of security and at the same time should promote implementation of strategic national priorities and effectively protect national interests [6, p. 177].
Responsibility for monitoring and control of the commodity markets of agricultural products was assigned to the Ministry of Agriculture of the Russian Federation together with the law enforcement bodies of the Federal Security Service of the Russian Federation, the Federal Customs Service of the Russian Federation and the Ministry of Internal Affairs of the Russian Federation. One of the methods for the implementation of these functions was creation of mobile points at Russian borders that were aimed at the preventing import of agricultural products from the territory of the Eurasian Economic Union if the country of origin of these goods were the U.S., the EU, Canada, etc. Moreover, on that matter Russia introduced new measures of administrative responsibility. For example, in accordance with Article 16.3 of the Administrative Code of the Russian Federation ignoring prohibitions and (or) restrictions on the import of goods into the customs territory of sanctioned products became liable.
Since the entry into force of the Decree of the Government of the Russian Federation of July 31, 2015 No. 774, about 32 000 tons in total of «sanctioned» fruit and vegetable products have been destroyed including that 95% of all destroyed sanctioned products were imported from the territory of the Member States of the Eurasian Economic Union. In order to identify the country of goods origin law enforcement agencies even used palynomorphological methods, namely the method of spore-pollen analysis, on plant products which required large financial costs to check each suspicious shipment.
Basis for the criminalization of economic crimes in the context of the imposition of economic sanctions
The need to protect the mentioned above state and social interests determines the desire of the authorities to intensify the criminal law impact. Based on this, the aim to improve criminal law impact became one of the most important issues of the state criminal policy [7, p.11].
For 6 years since the sanctions were imposed against the Russian Federation, numerous drafts of normative acts were sent to the supreme legislative body by the executive authorities in order to criminalize or promote accountability for the above-mentioned violations of the Russian countermeasures regime by business entities.
So, the Federal Customs Service of the Russian Federation proposed a draft of Government Decree aimed at preventing the import of «sanctioned» products into the Russian territory that as its core implied classification of the sanctioned goods as strategically important that consequently can be used in order to prosecute smugglers (Article 226.1 of the Criminal Code of the Russian Federation) [14].
Besides, the Code of Administrative Offenses of the Russian Federation is also proposed to be supplemented with an article establishing responsibility for the storage, transportation and sale of sanctioned goods. The corresponding draft law was prepared by the Russian Federal Service for Surveillance on Consumer Rights Protection and Human Wellbeing [15]. The Government of the Russian Federation also came up with an initiative to supplement the Administrative Code with new articles 14.2.1 and 23.87 that would cover for administrative liability for illegal circulation of certain categories of goods on the territory of the Russian Federation.
The Ministry of Agriculture of the Russian Federation has also published a draft law that provided for promotion of administrative liability for the import of sanctioned goods into Russia.
The Ministry of Finance of the Russian Federation proposes to supplement the Criminal Code of the Russian Federation with an article 226.2 introducing liability for violation of the prohibition on the circulation of certain categories of goods in the Russian Federation established in accordance with the legislation of the Russian Federation on customs [16].
Depending on the development of the situation with the import of sanctioned goods proposals of the state bodies to promote liability for the corresponding violations varied from an increase in administrative fines to real imprisonment.
Based on the principle of economy of criminal repression, the legislator provides administrative liability for violations of numerous rules and the criminal law mechanism is applicable only in cases where violations of such rules threaten public safety or cause significant harm to public relations [13, p.17].
As a result, there is a question of assessing the infliction of significant harm to public relations by such offenses. On the one hand, the state bears huge financial costs for the provision of mobile points, disposal of detained products, the use of forensic methods for identifying products. Moreover, undoubtedly it causes harm to national interests both on the internal and external contours, including the development and deepening of integration processes. At the same time business within the Eurasian Economic Union incurs costs and expenses due to changes in logistics routes and risks of prohibiting trade in certain types of goods between the Union Member States. On the other hand, the established earlier concept of improving criminal law in order to improve conditions for doing business is being destroyed although in the beginning of the development of this process laid the course of decriminalizing economic crimes.
In order to comprehensively analyze the state of criminal law impact it is necessary to establish the range of acts classified as crimes dangerous to the national economic security. This presupposes a comprehensive and systematic study of the grounds for establishing a criminal law prohibition (criminalization) [10, p. 92].
In particular, Ms Korobeeva’s position is that criminalization is understood as the process of identifying socially dangerous forms of individual behavior, recognizing the admissibility, possibility and expediency of criminal law combating and fixing them in the law as criminal and criminally punishable [12, p.82].
When studying the features of criminalization (decriminalization), it is also necessary to take into account that the criminal law must reflect changes in the political and socio-economic situation, promptly respond to their changes, especially to the expansion (or narrowing) of the area of manifestations of negative processes and phenomena, the enlargement (or reduction) of their scale and increase (or decrease) on this basis of the degree of public danger [11, p.69].
Mr Dagel’s position is justified by the fact that there is a certain need for mandatory criminological, economic, socio-political and socio-psychological justification of criminalization. It is claimed that the main goal of criminalization is the formation of an integral system of criminal law prohibitions, mainly of an exceptional and temporary nature, which are due to the high degree of social danger of acts, their relative prevalence and the impossibility of successfully combating them with other measures [8, p.57].
Investigating issues of criminalization its understanding should not be limited solely to doctrinal provisions. It should be noted that the Constitutional Court of the Russian Federation in its Resolution of April 25, 2001 N 6-P in the case of checking the constitutionality of Art. 265 of the Criminal Code of the Russian Federation indicated the right of the state to establish criminal liability for socially dangerous acts that, due to their prevalence, cause significant harm and cannot be prevented by other legal means [3].
Conclusion
Therefore, in the case when state forces represented by law enforcement agencies and special means are used for the restoration of violated public relations a criminal liability should be embodied in the law due to the high level of public danger of the corresponding act.
These attempts Russia have been making for 6 years now without resorting to criminalization and acting in accordance with the previously approved concept for the development of entrepreneurial activity. However, it is necessary to approach this problem more broadly and take into account political, socio-economic and other issues of national security.
As a result the improvement of the criminal law mechanism to ensure economic security should be built in a single set with the measures to ensure national security, taking into account national interests, internal and external conditions. In this regard it is necessary to improve legal framework to ensure economic security by optimizing criminal legislation and direct enforcement by developing the most effective means of combating economic crime.
References
1.Decree of the President of the Russian Federation of August 6, 2014 No. 560 «On the Application of Certain Special Economic Measures to Ensure the Security of the Russian Federation» (as amended).
2.Resolution of the Government of Russia No. 774 dated July 31, 2015 “On Approval of the Rules for the Destruction of Agricultural Products, Raw Materials and Foods Included in the List of Agricultural Products, Raw Materials and Foods, the country of origin of which is the United States of America, the countries of the European Union, Canada, Australia and Kingdom of Norway, which are prohibited from being imported into the Russian Federation ”.
3.Resolution of the Constitutional Court of the Russian Federation of June 27, 2005 N 7-P on the case of checking the constitutionality of the provisions of parts 2 and 4 of Art. 20, part 6 of Art. 144, paragraph 3, part 1 of Art. 145, part 3 of Art. 318, h. 1 and 2 of Art. 319 of the Criminal Procedure Code of the Russian Federation.
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10.Lesnikov G.Yu. Criminal policy of modern Russia (methodological, organizational and legal foundations): dis. … dr. jurid. sciences. M., 2005.S. 92.
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12.Russian criminal law: a course of lectures. T. 1: Crime / ed. A.I. Korobeeva. Vladivostok, 1999.S. 82.
13.Shergin A.P., Shergina K.F. Problems of the integration of administrative and criminal liability // Scientific portal of the Ministry of Internal Affairs of Russia. 2010. N 4 (12). P. 17.
14.For smuggling of sanctioned goods can establish criminal liability // GARANT.RU: information and legal portal. 2015.2 aug. URL: http://www.garant.ru/news/645996/#ixzz6o5ZJM1Ve (date of access: 03/01/2021).
15.Rospotrebnadzor proposed to fine for the transportation of sanctioned products // RBC.RU: information and legal portal. 2017.1 Feb. URL: https://www.rbc.ru/society/01/02/2017/5891bd0f9a794705c5a08d88 (date accessed: 03/01/2021).
16. For the illegal circulation of sanctioned products, the Ministry of Finance of Russia proposes to establish criminal liability // Consultant plus: information and legal portal. 2017.17 November. URL: http://www.consultant.ru/law/hotdocs/51490.html/ (date of access: 01.03.2021).
Information about the author:
Kaminskiy Ilya Sergeevich, Head of Division of Access to Foreign Markets and Settlement of Trade Disputes in Eurasian Economic Commission
Информация об авторе:
Каминский Илья Сергеевич, начальник отдела доступа на внешние рынки и урегулирования торговых споров,
Евразийская экономическая комиссия
