Yekaterina Trifonova
Political Desk Correspondent, Nezavisimaya Gazeta
The State Duma is set to approve amendments to Russia’s Criminal Procedure Code that would expand the use of cash bail as a preventive measure in economic crime cases. At present, this alternative to pre-trial detention is rarely used. Experts cited by Nezavisimaya Gazeta say the problem lies in the preference among judges, prosecutors and investigators to keep those accused of serious offences in detention centre. As a result, bail, with amounts directly linked to the damage caused, may effectively need to become a mandatory alternative to detention where the defendant agrees.
The State Duma’s Committee on State Building and Legislation has already prepared the amendments to the Criminal Procedure Code for second reading. The draft law is likely to be considered and approved in mid-May, meaning the new rules could come into force in the second half of the year.
The core of the government’s proposal is that bail would be set at a level equivalent to the damage caused. By all accounts, defendants would deposit in advance the amount they could be required to repay in the event of a conviction.
It is no coincidence that the offences covered by the revised Articles 97 and 106 of the Criminal Procedure Code are commonly referred to in practice as ‘economic crimes’. The changes will primarily affect obligations of businesses and individuals related to taxes and other payments to the state.
The amendments would also allow courts to combine cash bail with restrictions drawn from other preventive measures. For example, defendants could be barred from leaving their place of residence without the investigator’s permission or from communicating with business partners. They could also be required to seek approval from law enforcement each time they leave home.
Posting bail would therefore not amount to full freedom, although the level of control would still be less restrictive than under house arrest.
Bail remains rarely used in criminal cases, despite its clear advantages over other preventive measures. The state saves on the costs of pre-trial detention and may even collect additional revenue if bail conditions are breached. Defendants who remain at home are also better able to prepare their defence
However, while linking bail to the amount of damage makes the rule more straightforward in theory, experts cited by Nezavisimaya Gazeta doubt the mechanism will prove effective in practice.
Fyodor Trusov, managing partner at the Moscow law firm Sokolov, Trusov & Partners, told Nezavisimaya Gazeta that setting bail at a level equivalent to the damage could serve the interests of all parties in criminal proceedings. However, the problem lies less with the law itself than with its enforcement.
Although provisions on bail have long existed in the Criminal Procedure Code, courts have been reluctant to apply them. The underlying reason, he said, is that in economic crimes pre-trial detention is often used not merely as a preventive measure but as a means of exerting pressure on the defendant. As a result, even a sound legislative initiative is unlikely to genuinely ‘revive’ the bail mechanism unless the broader approach of investigators, prosecutors and courts to economic crimes changes.
Igor Bushmanov, managing partner at the law firm AVEKS YUST, told Nezavisimaya Gazeta that the problem lies less in shortcomings of Article 106 of the Criminal Procedure Code than in a broader set of factors rooted in law enforcement practice, institutional habits and even the mindset of judges, prosecutors and investigators. Opting for stricter preventive measures remains the default approach.
He noted that in more than 25 years of legal practice, bail has been imposed no more than five times. Even lawyers do not always exercise their right to petition the court to apply bail as an alternative to a stricter measure before its term expires.
In his view, the proposed amendments could encourage wider use of bail, with their main advantage being the introduction of a clearer and more workable criterion for setting its amount. However, in complex economic cases the precise scale of damage caused is not always clear, particularly at the early stages of an investigation. This can lead to disputes and delays in deciding on a preventive measure, ultimately reinforcing the preference for detention or house arrest as simpler options.
‘Without clear guidance from the highest judicial authorities and a shift in attitudes towards bail among courts, prosecutors and investigators, amendments to the Criminal Procedure Code alone may prove insufficient,’ Bushmanov said.
Lawyer Alexander Karavaev argues that the current economic climate, the need to secure additional budget revenues and the decision to link bail to the amount of damage claimed by the prosecution all ‘suggest that the bail mechanism may begin to function more actively’. At the same time, bail would be returned only in the event of an acquittal, which occurs in roughly 0.1–0.2 % of cases.
Karavaev told Nezavisimaya Gazeta that reversals of decisions denying bail in favour of pre-trial detention are, where occurs at all, very much a collector’s items. He also suggested an additional amendment to the Criminal Procedure Code: to explicitly rule out the use of stricter preventive measures, or at least detention, in specific cases and for certain offences.
Evgeny Rubinstein, Vice-President of the Federal Chamber of Attorneys, told Nezavisimaya Gazeta that bail as a preventive measure has been known in Russia for more than a century. Yet in the modern period it has been used extremely rarely.
‘Since the adoption of the Criminal Procedure Code, its application was initially hindered by the lack of court deposit accounts for posting bail and the absence of a mechanism for valuing pledged assets. Later, the difficulty lay in determining appropriate bail amounts in specific cases,’ he said.
Attempts to address these issues through amendments to the code and clarifications by the Supreme Court have not led to wider use of bail, Rubinstein noted. He suggested the problem lies less in legislation than in judicial attitudes and the limited usefulness of bail for investigative authorities.
Many judges, he said, view bail as a form of ‘buying’ freedom during the investigation, accessible only to wealthy defendants, while those without sufficient means are placed at a disadvantage
‘Clearly, such attitudes run counter to the original purpose of this preventive measure, which was to create mechanisms of incentive and control over a defendant’s behaviour, including financial ones,’ Rubinstein stressed.
As for its ‘ineffectiveness’ from the perspective of investigators, release on bail does not facilitate the extraction of confessions. Because it does not significantly restrict a defendant’s freedom of movement or personal security, it cannot serve as a ‘lever’ to compel admissions of guilt. As a result, investigators tend to request pre-trial detention, which, he noted, effectively fulfils this primary objective.
Rubinstein agreed that the effectiveness of bail practice could be improved by introducing a rule making it mandatory to replace detention or house arrest with bail once the court-determined sum, or collateral equivalent to the damage, has been posted. In his view, such a provision should apply to all offences involving property damage.
At the same time, he noted that none of the recent reforms of criminal procedure institutions aimed at strengthening safeguards for defendants in so-called business-related cases have led to tangible changes in practice. The problem, he suggested, lies in the restrictive interpretation by law enforcement of what constitutes ‘business crimes’. Classification of offences under this category is often undermined by the argument that ‘entrepreneurial activity is lawful by nature, whereas any crime inherently involves a violation of the law’.
