CommentaryOriginalSociety

Searches in Ukrainian Companies: Legal Methods or Deterrence of Investors?

Court Ukraine

According to lawyers, about 200 searches a day are being conducted in Ukraine in 2021. Law enforcement officers come to “visit” both Ukrainian and international companies. At the same time, there have been many high-profile cases in Ukraine related to abuses by inspection bodies. Promote Ukraine learned from legal community experts how searches are conducted in various companies and what entrepreneurs should do in this case.

Oleksandr Hatskevich expertOleksandr Khatskevych, Managing Partner of PrimeLex Law Firm

According to some data, more than 120,000 searches were conducted in 2017. And the trends of recent years do not indicate a decrease.

A search is always an unpleasant and usually unpredictable thing for any business entity. Pursuant to the current Criminal Procedure Code of Ukraine, a ruling on a search warrant is not subject to appeal, and an investigator or a prosecutor exercises the right to conduct a search, which was granted by an investigating judge. Therefore, the attempt to explain your innocence, lack of relation to the criminal proceedings to an investigator will not be of any use and sometimes could hamper normal communication with an investigator at the beginning of a search.

In this case, many may wonder whether searches can be conducted “at the request” or, perhaps, on fabricated grounds. Yes, unfortunately, such cases do happen. First of all, this applies to criminal proceedings with your company or your counterparty as a defendant in which the identity of the suspect has not been established and there is no “factual” pre-trial investigation.

I recommend focusing not on the legality of obtaining a search warrant, but on its form. The only legal basis for a search is the ruling of an investigating judge to grant the right to conduct a search. Be sure to check the period of validity of the ruling, the address of the premises in which the search is to be conducted, as well as the persons who were granted the right to conduct a search and who are specified in the decision. Expiration of the ruling, an error in the address, as well as non-authorised persons are things that may allow you to prevent a search at the beginning. But even this is not a panacea. In most cases, investigators fend off errors, referring to a subsequent appeal against their actions by your lawyer and continue the search. Therefore, preparedness for a stressful situation, preliminary preparation of personnel for the search are clearly effective methods to prevent unpredictable consequences.

Nazar Garasimchuk expertNazar Harasymchuk, Lawyer at Matviyiv & Partners Law Firm

I recommend understanding the importance of personnel’s behaviour during the search. You need to instruct them on the algorithm of actions during searches, conduct training, simulate various practical situations as it can help reduce the “losses” of the company. In an ideal scenario, the company’s employees should not stand apart during a search but act as a whole.

First of all, it is important to know clearly: what to do? (inform about a search) whom? (manager, lawyer) when? (immediately) who? (person designated by the manager).

If there is no manager, you should determine in advance a person who will “play first fiddle” in the company before the arrival of lawyers, in particular:

  • Inform about the company’s desire to exercise its right to legal aid and ask to wait for a lawyer
  • Check the warrant cards of law enforcement officers and record information about the participants in the investigative action
  • Receive a copy of the ruling of an investigating judge (if any), take a photo, and send it to the management and the lawyer if possible.

Vitaliy Matseliukh, Managing Partner of Artius Law FirmVitaliy Matseluh expert

Unfortunately, our country sees a practice of conducting searches at the request of somebody. Basically, this tool can be used by raiders or unfair competitors to gain access to certain documents or information. Law enforcement officers do not disdain this method either, if they believe that the company’s representatives will come to make some arrangements after a search.

Such “special-order” searches always have a common feature: they are based on false and unverified evidence interpreted by investigators at their discretion, or on so-called “internal” documents, such as interrogations of operational officers, certain specialists, inspections, or tax data results.

You need to prepare for a search in advance, keeping in mind that most often its purpose is to stop the company and intimidate it. Therefore, it is necessary to instruct employees: to speak correctly, to speak in the presence of a lawyer, not to divulge trade secrets, and to remain calm, although a search is always stressful for any person.

When law enforcement officers knock on your door, you should immediately call a lawyer, demand a copy of the ruling of an investigating judge, check it for compliance with the requirements of Article 235 of the Criminal Procedure Code of Ukraine, carefully examine the search address, which is specified in it, as well as a list of things and documents which the search aims to identify.

Valentyna Terekhova, Lawyer, Director of OMI LAW GROUP Valentina Ternova expertka

Today, any businessperson, whose political views differ from those the authorities have, or who competes with opponents or business partners, has not met the expectations of a demanding customer, may suddenly get into an unpleasant situation. Namely, such a businessperson may become a defendant in a criminal case, which leads to many unforeseen circumstances related to the conduct of criminal proceedings, including searches.

Legislative regulation of the search, as a procedural action, is enshrined in the basic law, the Constitution of Ukraine, the Criminal Procedure Code of Ukraine, the Law of Ukraine “On Enforcement of Decisions and Application of the Case Law of the European Court of Human Right,s” as well as special regulations: the Law of Ukraine ” On the Bar and Practice of Law” and the Law of Ukraine “On the Judiciary and Status of Judges.” Law enforcement officers are also guided by the case-law of the European Court of Human Rights and the Supreme Court during searches.

It seems that everything is regulated by law. But in practice, illegal actions, abuse of power by law enforcement agencies during searches, cause considerable harm to persons who face searches.

Vitaliy Rashevsky, Lawyer at L.I.Group Law Firm

Vitaliy Rashevskiy expertThe main thing businesses should remember when law enforcement officers conduct a search in their workplace is that such an investigative action can be carried out only on the basis of a court ruling (except as required by law).

Video recording of the premises as a whole, or of its individual rooms, provides an opportunity for an unscrupulous law enforcement officer to commit illegal acts in places that do not fall into the video recording area. For example, to toss in documents and material evidence that a person took in advance in order to legalise such evidence by seizing it during a search.

There are also cases when a dishonest law enforcement officer, using a place that is not recorded by a video camera, uses non-verbal gestures to indicate the possibility of receiving illegal benefits for improper investigative action or instructs witnesses to carry out pre-discussed actions.

If you see signs of a criminal offence, in particular, provided for in Article 162 of the Criminal Code of Ukraine (violation of the inviolability of home), you should file a relevant report to the territorial department of the State Bureau of Investigation.

Natalia Tolub

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