Plea bargain as a tool to combat economic crime

The Khamovnichesky District Court in Moscow has sentenced Nikolai Nesterenko who was accused of trying to raid several buildings in Moscow and St. Petersburg.

The case received notoriety when prosecutor Andrew Grivtsov, who investigated the case, was arrested on charges of extorting a bribe of $15 million from the president of Rosenergomash Vladimir Palikhata, whom he also planned to bring in as a defendant. The prosecutor claimed that he became the victim of slander intended ‘to destroy the criminal case’.

The Khamovnichesky district court found the former general director of OOO "Business Contract" Nikolai Nesterenko guilty of attempted fraud on a large scale and sentenced him to five and a half years' imprisonment on probation. The case of the businessman, who pleaded guilty, was considered without holding a full trial. It was explained that because Nikolay Nesterenko had struck a deal with the prosecution he was given a more lenient sentence.

Dmitry Chernyakov
managing partner
Muranov, Chernyakov & Partners

+7 495 783-74-50
d.chernyakov@rospravo.ru

Plea bargain, generally speaking, is a useful instrument. It should be noted, however, that during the year when the provisions for the agreements between prosecution and defence (Chapter 40.1 of the Code of Criminal Procedure) were being introduced into the mundane life of criminal justice, the legal community has repeatedly and rightly expressed its concerns about the inconsistency and contradiction of the institution.

Legal practitioners are left with no choice but to apply plea bargains despite the weaknesses of the instrument. Practical difficulties arise when, for example, all accomplices are parties to the agreement, or in the case of multiple offences, when a suspect wants to reach an agreement on just one of several alleged crimes etc.

I must say that the institution of pre-trial agreements has little effect on the detection of crimes, unless the sums involved are really big, because reaching a pre-trial agreement in such a case is very difficult. One reason is that plea bargains provide for only one form of preliminary investigation (article 317.4 of the Code of Criminal Procedure), while generally in one out of four economic crimes preliminary investigation is also carried out in the form of inquiry.

Of course, there is no explicit prohibition on the conclusion of a pre-trial agreement by a suspect against whom an inquiry is held. In practice, however, there are a number of obstacles because the procedure for the investigator on how to respond to such a request has not been set. The only option that remains is to transfer the case to the prosecutor with the view to forwarding it to preliminary investigation and only then can a pre-trial agreement become possible.

It is clear that a gap like that in regulation both delays and complicates the usage of plea bargain. When a preliminary investigation in the form of inquiry is required, few suspects thought to be involved in an economic crime, would even contemplate a pre-trial agreement because it would only aggravate their position. For example, the investigation would take twice as long, except in exceptional cases. On the other hand, the investigator is not interested in signing a pre-agreement too since it only complicates his work.

Thus, only the mentioned aspects complicate the conclusion of pre-trial agreements and the search for money, valuables and other property - the real matter of all economic crimes. After all, if it was possible to enter into a pre-trial agreement without undue delays, there would be more time and effort to spare on the search for money, valuables and other property that were obtained through crime.

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