Detention of Persons Engaged in Entrepreneurial and other Economic Activities: Updated Legislation and Current Narratives of Judicial Practice

Abstract

For the first time, provisions on special rules for the election of a preventive measure in the form of detention of persons engaged in entrepreneurial activity appeared in domestic legislation in 2010. Since that time, the relevant regulatory provisions have repeatedly undergone minor changes, having significantly changed in 2019, when the legislative indication for the commission of a crime in the «sphere of entrepreneurial activity» was replaced by an indication of the status of a person suspected or accused of committing a crime related to his entrepreneurial or other economic activity. In pursuit of the goals of greater liberalization of criminal proceedings and protecting entrepreneurs from the unjustified use of procedural coercion measures in accordance of the public danger of crimes committed by them, in 2023 the law-maker again updated the provisions on detention, providing for regulation that at first glance could ensure their achievement. At the same time, as the analysis of judicial practice shows, the ongoing legislative changes have not solved the main problems of applying the appropriate preventive measure, since they have not clarified the content of the concept of entrepreneurial activity for the purposes of Article 108 of the Code of Criminal Procedure of the Russian Federation and have not determined the mechanism for establishing a link between this activity and the crime committed by the entrepreneur. The paper analyzes the approaches existing in the doctrine and law enforcement to solving these problems, suggests ways to resolve them that can ensure the achievement of the goals of humanization of criminal prosecution brought against entrepreneurs.