Some accused of embezzlement will even be able to count on having their cases reviewed
The State Duma adopted in the first reading a bill that prohibits including the amount of income tax paid on them in the amount of stolen funds. The new norm will require taking into account, when considering in appeal or cassation, sentences under several articles of the Criminal Code punishing crimes against property, and clarifying the amount of damage during the investigation. After all, the severity of the punishment and the period for expungement of a criminal record after its completion depend on the amount of stolen goods…
The government has developed a bill in pursuance of the decision of the Constitutional Court of December 8, 2022, reported Deputy Head of the Ministry of Justice Andrei Loginov. He did not talk about what story became the reason for considering the question of how to determine the amount of damage caused by theft.
Meanwhile, the Pacific Fleet Military Court addressed the Constitutional Court with a request for an answer to the question “how to calculate” where the case was filed on charges of fraud against citizen A (Article 159 of the Criminal Code).
This citizen served under a contract in the army from 2013 to 2021, and annually confirmed the highest qualifying level of physical fitness, giving the right to bonuses to his salary, by presenting a fake certificate of “Master of Sports of Russia” in table tennis. He was unjustifiably charged RUB 545,294. 03 kopecks, but this includes income tax in the amount of 70,897 rubles.
The Garrison Court found citizen A. to be a fraudster who had stolen large amounts of funds by deception, considering the tax amount to be stolen as well, and sentenced him to a fine of 400 thousand rubles. But on appeal, the verdict was changed: income tax paid to the state was deducted from the amount of stolen funds, and the fine was reduced to 250 thousand rubles.
The case of citizen A. went between authorities, which had different opinions when determining the amount of damage, until the Pacific Fleet Military Court decided to first request the opinion of the Constitutional Court. The Constitutional Court ruled: the note to Article 158 (“Theft”), which states how the amount of damage should be determined in relation to Article 159, also does not fully comply with the Constitution, because it allows you to include the amount of personal income tax paid on the stolen property, along with the actual salary or money received allowance.
The bill, which the deputies discussed, proposes to stipulate in this note that “in the case where the subject of theft is income subject to personal income tax, the amount of the specified tax shall not be included in the amount of theft,” paid to the state.
Mr. Loginov explained that without such clarification, in judicial practice “two contradictory approaches have developed”: sometimes the investigation and the courts include the amount of income tax paid in the amount of the stolen property, and in others they exclude it from it. It is necessary to supplement the note “in order to form a uniform law enforcement practice,” the speaker said, stipulating that this will not interfere with the restoration of the rights of victims and compensation for the harm caused by the crime.
First Deputy Head of the Committee on State Construction and Legislation Irina Pankina (“ER”) said that different estimates of the size of the stolen goods violate the constitutional principle of equality of all before the law, and proposed supporting the government’s initiative. She confirmed: Article 158 sets out the general principles of approach to the determination of damage and will apply to all articles in this chapter. That is, those that are punished for various types of fraud, and for misappropriation or embezzlement.
Anatoly Vyborny (“United Russia”) asked a question that concerns a large number of people accused or already convicted of various crimes and who paid personal income tax on stolen funds. “If the subject of theft now becomes income minus tax, will this be the basis for revising the classification of criminal cases under the articles of the chapter “Crimes against property”, even if the crime was committed before the innovations came into force? Will sentences that are contested on appeal, or even those that have entered into force but are contested in the cassation or supervisory authority, be reviewed?” The amount of damage is a key factor in determining both the severity of the crime and the punishment, the deputy recalled.
Mr. Loginov replied that “in this case, the law will not have retroactive force; this will apply only to those cases that will be opened and considered and decisions on which the courts will make after the adoption of the law and its entry into force.”
But in general, “changes in the Criminal Code, if they mitigate the punishment or otherwise improve the situation of the person who committed the crime, have a retroactive effect, that is, they apply to those who committed the crime before these changes came into force, including those , who has served his sentence or is serving it now,” recalled in a conversation with MK the first deputy head of the Committee on State Construction and Legislation, Yuri Sinelshchikov (Communist Party of the Russian Federation).
This is stated in Article 10 of the Criminal Code — it only has no retroactive effect a law establishing or aggravating liability for crimes. The Criminal Code in this part is fully consistent with the Constitution, which states that “if, after the commission of an offense, liability for it is eliminated or mitigated, a new law is applied”…