Problems of extending rights of the defendant against whom preventive measures are applied during criminal proceedings in cases over crimes in the sphere of business and other economic activities

The Article deals with the problems of creation of an organizational legal mechanism that regulates the application of preventive measures in criminal proceedings in cases over crimes in the sphere of business and other economic activities. The author analyzes the content of Item 3.1, Part 4, Article 46; Item 9.1, Part 4, Article 47 and Part 13, Article 107 of the Criminal Procedure Code of the Russian Federation and concludes that norms authorizing the defendants to see a notary for notarization of his business activity are characterized by their inconsistency and incompleteness. The article points out the drawbacks of these norms and ways for their elimination. An extensive approach of the Plenum of the Supreme Court of the Russian Federation in Item 8 of the Resolution of November 15, 2016 No. 48 in interpreting the meaning of law on a circle of people empowered to protect their interests is criticized. According to the Plenum position, any "other persons" who committed crimes in the sphere of business (listed in Part 1.1, Article 108 of the Criminal Procedure Code of the Russian Federation) in partnership with a chief performer (the subject of business activity) have rights to see a notary for notarization provided for by law. The article notes the lack of norm with the contents similar to Part 13, Article 107 of the Criminal Procedure Code of the Russian Federation, in Article 108 of the Criminal Procedure Code of the Russian Federation. However, the meaning of amendments to Article 46 and 47 of the Criminal Procedure Code of the Russian Federation unambiguously leads to the opinion that new law extends also to a preventive measure in the form of detention. It is proposed to eliminate this gap in a legislative way. The author concludes about the lack of effective control over the behavior of a defendant and of the mechanism, which excludes abuses of the right to notarization. Criminal procedure norms create uncertainty on a circle of people, who have the right to the help of a notary and those actions, which can be taken for the benefit of the defendant. In this regard the position about the need of giving the right to notarization for the benefit of any defendant, and not just of persons accused of commission of crimes in the sphere of business is proved. The conclusion about the need to grant an appointment with a notary not only for certifying the right of attorney to represent the interests of the person who is accused (suspected) of commission of crime of the sphere of business or other economic activities is formulated. The point of view according to which the notary can be allowed to visit a defendant or suspect for taking any necessary notarial actions, which do not contradict the purposes of criminal legal proceedings is argued. The difficulties of implementation of legal requirement on prevention of notarial actions targeted at disposition of property and securities, which are to be arrested for the purpose of indemnification or possible confiscation, are discussed. The institute of notarial secrecy interferes in it. In this regard, it is offered to allow the presence of the investigator during notarial actions with the participation of a suspect or defendant.

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