Electronic ankle bracelets as an alternative
A civilized response to the economic crimes.

During the last session the Government of RA approved the package of legislative initiatives aimed to increase the efficiency of criminal justice and to improve the acting criminal system which will be presented to the National Assembly. Some of the proposed amendments are related with the legal regulation of problems in the area of economic crimes. "Capital" daily newspaper has had an interview with Attorney Sedrak Asatryan, the managing partner of Concern-Dialog law firm on some issues concerning the economic crimes

-Mr. Asatryan, during your last interview to "Capital" daily newspaper you said that the RA Code of Criminal Procedure pertaining to the economic crimes does not correspond to the spirit and logic of market reforms in Armenia. What did you mean? 
-The Code of Criminal Procedure needs to be wholly changed, anyhow the concept is developed and I consider it necessary to note that the concept is quite progressive and it considers the implementation of new institutions. My colleagues are against some innovations, but I would not like to express any thoughts on this issue, as I do not have enough experience in this area. Perhaps they are right. I would like to touch upon two important issues included in the content of this concept, which are not going to be changed in the new Code of Criminal Procedure, that is the regulation of the application of the precautionary measure as detention in case of economic crimes and the issue of the necessary suspension of criminal cases commenced on the basis of administrative acts if these acts are disputed.
-In your opinion what is the necessity of suspending the criminal case on the base of challenging the administrative act? 
-Along the years the international organizations make reports on the necessity of toughening the administration in the tax and customs spheres. The Government has accepted the presence of such problem and has undertaken steps for solving it, but to the extent of my awareness on the undertaken programs unfortunately they will not give good results.
-Why are you so pessimistic? 
-There is no problem of pessimism, however, the issue of administration will not be solved by developing new procedures for the separate spheres of administration as the RA law on "The Foundations of Administration and Administrative Proceedings" is in force, and this law regulates the administration in Armenia according to the European rules and even more (I mean article 48 of the law, which does not exist even in the German Administrative Code). Therefore, there is no need for writing new procedures. I think in case of real willingness of reducing the corruption risks they are clearly visible. In order to substantiate my words, I will bring a hypothetical example: An inspector with good fantasy can determine based on inventory and measurement data or the information received from a third party that the taxpayer has not calculated and presented the report correctly and can "paint" an amount in the inspection act according to article 22 of the Law on Taxes. This act can become a base for the tax intelligence authority to initiate a case as a result of intentional tax evasion. On the base of the "painted" administrative act the inspector can initiate a prosecution or can require a bribe from the head of the company under the threat of prosecution. Being in such condition the director will agree to give a bribe for different reasons (from negligence up to having unscrupulous professionals).
-Why do you think that giving a bribe has not an alternative in that case? 
-I think so because otherwise if the director dares to appeal the administrative act to the superior authority or court, a criminal case can be brought and while the director tries to challenge the legality of the administrative act in the court and waits for the final court decision, he will be in prison within the framework of the criminal case.
-What kind of solution would you suggest? 
-I would like to suggest defining a new institute of the suspension of criminal case in the Armenian Code of Criminal Procedure, that is, the proceeding of the criminal case initiated on the base of the administrative act shall be suspended by the solicitation of complaint brought by a party against the administrative act until the final decision on the legality of the administrative act is made.
-Do you think the problem will be solved in this way? 
-I am not sure my suggestion is the best. The abuse of right of the opposite party can work here but I am sure if the authorities show their willingness and estimate this problem in the list of corruption risks, we can find a formulation with flexible happy medium.
-During the last Government session a draft was proposed for the amendments in the Criminal Code which supposes to free the person from criminal responsibility who has committed an economic crime in case the latter pays the caused losses and the calculated fines and penalties. Isn’t this draft a solution to the above mentioned issue? 
-I am glad that the Government accepts the existence of this problem but unfortunately this draft is a situational patch to the Criminal Code. It is said in the draft that the person who has performed actions by the appropriate articles is exempt from criminal liability if he pays the losses, etc, and what if the person has not performed such actions and challenges the administrative act. Besides, it is not clear from this draft what kind of problem the Government wants to solve. If there is need to make non-criminal (the articles mentioned by the 5th part of the article 189, I think they should get another formulation and appropriate amendments should be done in the Code on Administrative violations.
-What do you mean by saying regulation of the problem on applying the precautionary measure as an arrest?
-In my opinion the use of alternative modes for precautionary measures, especially in case of economic crimes, is a necessity. According to Kommersant (Russian daily), the world experience shows that during the last ten years the electronic ankle bracelet is actively used in more than 60 countries in the world as an alternative precautionary measure. Moreover, the electronic ankle bracelet is applied in different countries instead of house arrest, free exile or administrative detention. For example, the electronic ankle bracelet has been applied in Sweden for small crimes for 6 years. The electronic ankle bracelet is also applied in Germany, Israel, in the 48 states of USA, Russia started to study it in 2001 and has performed an appropriate amendment in 2010, but they do not use it widely yet. Russias tardiness perhaps is understandable taking into account the countrys endless area, though its at least a year that the precautionary measure is applied as a loan in Russia in case of economic crimes. Georgia has gone ahead in this issue as well. The electronic ankle bracelet is widely applied there too. Our Government has announced the IT sphere as a priority branch of economy since 2001. I think it is worth thinking about completing this sphere with modern technologies too.
- And what is the electronic ankle bracelet? 
- The electronic ankle bracelet is a device like a modern watch which is attached to the person’s hand or leg and sends a call to the computer of the authority performing the monitoring through a GPS or any other systems, which allows controlling the subjects steps. I would not like to touch upon the peculiarities of the device as it is well known to the specialists.
-Isn't this device too expensive for our country? 
-I can not give you an answer with certain figures, but if we compare these expenses with the amount of taxpayer money spent on prisoners, in my opinion it will be cheaper except the onetime costs related to the creation of initial system.
-You mention that especially in case of economic crimes the arrest is not justified to apply as a preventive measure. How will you explain this?
-The lawmaker has defined the necessity of applying arrest as a precautionary measure for avoiding two situations; these are to hide from the body which carries out criminal proceedings and possible actions of concealment and falsification of materials relevant to the case in the pre-trial process of investigation or court proceedings (Article 153 of the RA Criminal Code). In case of economic crimes the evidence having importance in the case is, as a rule, in written form, and is being seized by the investigative body until making decision for the preventive measure. The arrest does not solve the problem related to the prevention of the case investigation, as if needed the prisoner can impede the investigation from prison. Therefore, only the problem of hiding from the body carrying out criminal proceedings stays unsolved, which, as it is seen from the experience of 60 countries of the world, can be solved by the electronic ankle bracelet.

Article by Armenak Chatinyan
Capital daily newspaper
Non-official translation by Liana Kamalyan