Change the status of the law enforcement agencies
Over the last several months a number of amendments were introduced in the legislation designed to reform the law enforcement system.
Among other, were adopted the following laws:
- Federal Law of 28.12.2010 № 403-FZ “On the Investigation Committee of the Russian Federation”;
- Federal Law of 07.02.2011 г. № 3-FZ “On the Police”;
- Federal Law of 07.02.2011 г. № 4-FZ “On the Introduction of Amendments into Certain Legislative Acts of the Russian federation due to Adoption of the Federal Law “On the Police”, among others.
Among the main activities of the police the new law specifies the following:
1) Protection of the individual, society and state from criminal attacks;
2) Prevention and suppression of crimes and administrative offences;
3) Identification, crime detection and the initial inquiry in criminal cases;
4) Search for persons;
5) Proceedings in cases concerning administrative violations, execution of administrative penalties;
6) Keep public order;
7) Ensure road safety;
8) Monitoring compliance with legislation in the trafficking of weapons;
9) Monitoring compliance with legislation in the field of private detective service and security activities;
10) Protection of property and facilities on a contractual basis;
11) State protection of participants in criminal proceedings, judges, law enforcement officials and regulatory authorities.
Thus, the law enforcement agencies retained a number of powers, which are not directly linked to the investigation and prevention of criminal activities. Among them are: provide paid services for protection of property, exercise control over the individuals who provide detective and safeguarding services, among others. At the same time, the new law eliminated a number of law enforcement “non-core” functions previously performed by the militia, among which one can specify a search for the owner of stray animals, tracing the debtor and his property, ensure citizens reporting to military commissariats at conscription, etc.
Amendments related to the powers of the law enforcement agencies in exercising control over the activities of legal entities and the powers in the investigation of tax crimes are of great interest regarding the financial aspect.
New wording in the text of the Federal Laws “On the Police” and “On the Investigation Committee of the Russian Federation” cast doubt on the effectiveness of the protection of rights of the audited organizations beyond 2011.
In particular, provisions of subitem 4, item 1, Article 13 of the Law “On the Police” (this article lists rights of the police) do not contribute to the protection of the business community interests. These provisions provide the police with unlimited rights to demand from the organizations any documents due to “the investigation of criminal cases and matters pending before the Administrative Offenses, as well as in connection with the verification of duly registered claims and reports of crimes”. In other words, in order the demand becomes legal, it is sufficient for the law enforcement agencies to refer, for example, to the fact that they received a denunciation on the tax payer, which requires an investigation. At that, the order of the discovery of documents, unlike the procedure for exercising other enforcement actions such as arrest, entry (penetration) in residential and other facilities on the land and territories, sealing off (blocking), terrain, etc., has not been entered in the Law “On the Police”. Thus, this power creates conditions for abuse, which, in particular, many participants of the public discussion of the draft law indicated at the revision stage (see оfficial site of the draft law).
The Investigation Committee has been vested large powers (item 1 Article 7 of the Law “On the Investigation Committee of the Russian Federation”) regarding investigations of tax payers and demand documents.
All combined significantly reduced the importance of 2009 amendments aimed at restriction of non procedural rights of the law enforcement agencies. When in 2009 the law enforcement agencies lost the right to an autonomous documentary audit of the organizations activities, then in 2011 the Investigation Committee actually reclaimed all procedural rights for the investigation of tax crimes previously lost by the militia. Thus, the law enforcement system reclaimed additional tools for clampdown on the business community.
As a result, we can conclude the existence of some uncertainty as to whether, in what order and how the tax and law enforcement agencies, as well as the Investigation Committee will interact with the realization of their rights in the fight against tax crime.
A.V. Kireeva, Candidate of Sciences (Law), Head of the Evaluation and Development of Laws and Regulations Department