The use of a declaration of capital amnesty in criminal cases, contrary to the assurances of the authorities, may become common practice. The Supreme Court did not find violations of the law in the seizure by FSB officers of a special declaration in the investigation of Valery Izrailit, a co-owner of the Ust-Luga company, which was building the port of the same name in the Leningrad Region.
Izrailit’s lawyers tried unsuccessfully to challenge the lawfulness of the removal of a special declaration in the courts, in which people disclose their assets in order to take advantage of the amnesty. On October 10, they were defeated in the Supreme Court - Judge Alexander Botin refused to forward their complaint to the cassation instance. A copy of the Supreme Court’s decision “Vedomosti” was provided by the businessman’s defense.
Experts called the use of the declaration in a criminal case a dangerous precedent that undermined confidence in the amnesty of capital. Those who use it will receive “firm legal guarantees that they will not be dragged around by various authorities, including law enforcement,” promised President Vladimir Putin in 2014 during the first stage of the amnesty. But the guarantees were not so firm, as the Izrailit case demonstrated. According to the prosecution, the criminal group, which he was a member of, saved on the supply of low-quality pipes for the port and withdrew money abroad. From the correspondence of Izrailit’s employees to ICQ, the FSB officers in St. Petersburg and the Leningrad Region learned that at the beginning of 2016 Izrailit filed a declaration of amnesty. In March 2017, investigators obtained permission from the court to seize a declaration in the building of the central office of the Federal Tax Service.
In early October, the prosecutor admitted during a court hearing that the declaration was “unnecessarily” included in the indictment. In the case, she will remain, but the court will not investigate her and build her sentence, explains one of Izrailit’s lawyers - Victoria Burkovskaya, a partner of Egorov Puginsky Afanasyev and Partners. However, as evidence, the prosecution continues to use the testimony and conclusion of a specialist of the Federal Tax Service on the declaration, although according to the amnesty law it is impossible to use information from it, she draws attention.
But the Dzerzhinsky District Court of St. Petersburg decided that, as soon as Izrailit was charged with crimes for which the amnesty does not apply, the law on amnesty does not apply. The Supreme Court did not find any violations. By his decision, he actually allowed the use of special declarations as evidence in criminal cases, said Burkovskaya.
The Presidium of the Supreme Court may review the decision by way of supervision, explains Anton Gusev, Head of Bryan Cave Leighton Paisner Russia Business Criminal Law Practice. If the defense fails to prove its case, then it makes sense to apply to the Constitutional Court to check the provisions of the Code of Criminal Procedure, which, despite the ban on the amnesty law, use special declarations as evidence in a criminal case, he argues.
Already after the first news of the precedent in the Izrailit case, the business’s desire to file special declarations has dried up (now the third stage of the amnesty is underway), says Dmitry Kostalgin, partner at Taxadvisor. But the Supreme Court’s ruling creates the main risks for businessmen who have already submitted declarations - now, for any of them, the security forces will be able to request the data they need, he warns. The news that the declaration was seized and used in a criminal case frightened the business, says a tax consultant for a large company. Many clients were outraged and said that they were going to turn directly to senior officials for clarification and guarantees that this would be an isolated case, he recalls. The decision of the Supreme Court discredits the law on capital amnesty, Gusev believes: using a declaration in a criminal case is possible only at the initiative of the declarant, and if the investigators did not plan to use it, then there are no grounds for seizure. Even if the court finds the special declaration to be unacceptable evidence, it will remain in the case file - how the illegally obtained records of telephone conversations remain, and this will create a negative psychological background when considering other cases, warns the managing partner of the law firm Rustam Kurmaev and Partners Rustam Kurmaev.
Earlier, Boris Titov, the Commissioner for the Protection of the Rights of Entrepreneurs, planned to ask the Chairman of the Supreme Court to initiate a plenary session and issue a resolution with a detailed interpretation of the law on capital amnesty, RBC wrote. Titov has not yet received a response, his representative said.
Indirect approval of the seizure of special declarations by the Supreme Court will not change anything in practice, says Koblev and Partners partner Ruslan Koblev: inquiry bodies and investigators have already looked for ways to familiarize themselves with the contents of declarations. Now the security forces will be able to do this, referring to the position of the Supreme Court, Kurmaev notes. Courts already satisfy only 5-7% of complaints about the actions of the investigator, he notes.