Has the business received effective tools to protect itself from the abuses of law enforcement agencies?
Late last year, having overcome violent resistance of law enforcement officers, the Government achieved approval of amendments to the Criminal Procedure Code by the Verkhovna Rada. These amendments significantly reduce illegal opportunities and corruption appetites of “businessmen” in epaulets.
The business ombudsman emphasizes in his reports the growing pressure on Ukrainian business by law enforcement agencies. A direct speech – “The scale of this problem, among other things, is confirmed by the fact that of 621 complaints received by the Council of Business Ombudsman, 112 (18%) are the claims concerning abuses by the bodies of pre-trial investigation and prosecutor’s office.”
I would add, if we single out the complaints (65 pcs.) against the actions of formally “nonexistent” tax police, which constitutes a part of the State Fiscal Service, from the general list of complaints against the above State Fiscal Service, which takes the first place, then the combined battalion of law enforcers (police, prosecutor’s office, SBU, tax police) will surely be ranked as second in the rating of violators, with the prospect to snatch “victory” from the GFS.
The novels of adopted law concern both directly conducted investigation in relation to business, and initiation of various “formal” criminal proceedings, the purpose of which is only pressure and extortion.
The law provides as follows:
1. New rules for conducting searches are applied. Investigators are required to make a video recording of search and allow lawyers at any stage of search. In case of violation, all evidence received during the search is inadmissible, that is, they have no evidentiary value and may not be used by court. What is important, the lawyer has the right to make his own video records, which automatically becomes an evidence base.
I see two key consequences. Firstly, investigators will be unable to plant fake evidence.
Secondly, since a lawyer will be present during searches, the possibility of violation of employees’ rights and attempts to persuade them to “cooperate” with investigation, for example, to make a false accusation with regard to the company’s management, will be excluded.
There are already first results of such changes. During a search in the office of one of companies in December, camera recorded that one of witnesses (usually such witnesses are the “bystanders” previously instructed by investigators), tried to steal money from the cash register .
2. Prohibition was introduced to withdraw data carriers and computer equipment (hard disks, servers, telephones, etc.). To withdraw a server is the easiest way to stop business, and sometimes even destroy it. Racketeers with certificates actively abused this, clearly understanding the consequences.
But the law simultaneously established a number of exceptions as to this prohibition. Subject to the availability of the court’s leave the investigator may withdraw the items and equipment in the following cases: (a) if they are necessary for examination, (b) if they are a tool for commission of a crime or received as a result of an offense (for example, a stolen telephone or client bank backend installed on a computer through which the cashing transactions are made), (c) if access to them is restricted by the owner, in particular, by setting a password.
Despite those wide exceptions, in general, the norm should ensure inviolability of office computer infrastructure. In practice, investigator will be unable to abuse the right to expertise, this requires a specific court decision.
You should be ready to provide passwords from servers, computers and telephones, and also allow copying information from them. By the way, SBU and NABU already possess special portable devices which unblock mobile phones and automatically check availability of keywords and numbers in them. Such devices are used by Israeli special services to combat terrorism
3. The requirements for obtaining a search permit have been strengthened.
Firstly, audio and video recording of consideration of investigator’s motion in court is introduced. This will exclude the possibility to file unreasonable motions. Investigator will be forced to prove the importance of his desire to “come to visit”, and judge will be more attentive to these arguments, since this record may be investigated in the future by the disciplinary chamber of the High Council of Justice.
Secondly, if the same motion was earlier rejected, a repeated application to court is prohibited. In practice, there have been cases when investigators attempted to obtain a search permit five times, hoping that their motion would be considered by a more loyal judge.
In combination with the new search rules, this should lead to reducing the number of “uninvited guests in epaulets” and cases of blocking the companies’ activities.
4. The right has been introduced to appeal against the investigation’s actions, which violate or restrict business rights (seizure of property, documents, etc.). Previously, such a right was only granted to the party of criminal proceeding (the suspect or victim), which artificially excluded the company’s possibility to stop the pressure on it in a legal way.
5. Endless blockage of the process of initiating criminal proceedings by various bodies on the same basis.
None of authorities may conduct an investigation, and charge should be dismissed, if under the same circumstances resolution was taken earlier to close the case. There are anecdotal cases when the tax police initiated proceedings on the facts of non-payment of taxes, but their colleagues from the police and SBU initiated their own investigations on the same episode, but called it embezzlement to circumvent the investigative jurisdiction. A similar approach was used by geographical principle.
6. It is possible to cease “formal” criminal proceeding, which have been “hung” for years in the register and allowed at any time to carry out investigative actions, and accordingly, kept the business on tenterhooks. The investigation has lasted, the case-related investigators and prosecutors have been substituted for new investigators and prosecutors, who, in turn, generated new activity to replenish their own cash, if not with money, then at least with gasoline coupons.
7. Law provides for the appointment of a special commission at the Cabinet of Ministers which will generalize the practice of the actions committed by law enforcement officers in relation to business and provide mandatory recommendations for consideration. Law does not establish clear powers for the above commission, but the availability of such a tool will allow to influence the situation.
It should be noted that the “Stop Masks-Show” was not the only change and amendment to the criminal procedure last year. The Verkhovna Rada also introduced, when adopting new procedural codes (civil, commercial, administrative), amendments to the Criminal Procedure Code. There are several important novellas among these changes and amendments:
- To obtain an approval to conduct investigative actions, one should apply only to a court at the place of registration of law enforcement agency. This excludes an opportunity for investigator to obtain such an approval for search or seizure in any court where he has friendly relations with a judge. At the same time, it strikes on the NABU. Anticorruptionists lost an opportunity to obtain permits for searches outside the Solomensky court, which they have previously used to prevent the leakage of information.
- Clear terms of investigation are established. In order to extend the time limits of investigation the investigator should apply to the court (not to the prosecutor, as it was before). Courts will suppress “empty” cases, neutralizing possibility to blackmail business.
- There is an opportunity to appeal in court against delivery of a notice of suspicion. Advancement of suspicion was an act that initiated unpleasant and irreversible processes, in particular, applying a measure of restraint, seizure of property and handing over of a case to the court, with an incomprehensible prospect for fair justice. Realizing this, businessmen were subject to pressure and did not want to play roulette. It was easier to agree to the investigation’s proposal. Now, you may appeal to the court and neutralize this risk there.
Both groups of changes and amendments are knocking out of the hands of corrupt officials the tools of pressure and blackmailing business. Searches recorded on camera and conducted in the presence of lawyers, inability to withdraw servers and computers, blocking the initiation of “empty” and unpromising criminal proceedings should qualitatively reduce unlawful interference of law enforcement agencies in business activity.
