Has business received effective tools to protect itself from abuses by law enforcement agencies?
Late last year, having overcome stiff resistance from law enforcement officers, the government obtained approval to amendments to the Criminal Procedure Code from the Verkhovna Rada. These amendments significantly reduce illegal, corrupt opportunities for police to do “business”.
Previously, Ukraine’s business ombudsman emphasized in reports the growing pressure on Ukrainian business from law enforcement agencies. “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 percent) are claims concerning abuses by pre-trial investigators and the prosecutor’s office,” one report read.
Most complaints are lodged against the actions of the State Fiscal Service of Ukraine. If we deduct from those complaints 65 complaints about the actions of the formally “nonexistent” tax police, which is a part of State Fiscal Service, the law enforcers (police, prosecutor’s office, State Security Service, tax police) are surely ranked as second, almost snatching “the first place” from the State Fiscal Service.
The amendments to the law adopted concern both investigations that are directly related to a business, and the initiation of various “formal” criminal proceedings, the purpose of which is only to exert pressure, and for extortion.
THE LAW PROVIDES AS FOLLOWS:
1. New rules for conducting searches are applied. Investigators are required to make a video recording of searches, and allow attorneys-at-law to be present at any stage of search. If there is a violation of this, all evidence received during the search is inadmissible – that is, they have no evidentiary value and may not be used by court. Importantly, the attorney-at-law has the right to make his own video recording, which can be part of the evidence base.
I see two key consequences. Firstly, investigators will be unable to plant fake evidence. Secondly, since an attorney-at-law will be present during searches, the possibility of the violation of employees’ rights and attempts to persuade them to “cooperate” with investigators, for example, to make a false accusation with regard to the company’s management, will be excluded.
2. It is now prohibited to seize data carriers and computer equipment (hard disks, servers, telephones, etc.). The seizure of a server is the easiest way to stop a 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 to this prohibition. Subject to the availability of the court’s permission, the investigator may seize items and equipment in the following cases: (a) if they are necessary for examination, (b) if they were used to commit a crime or were received as a result of an offense (for example, a stolen telephone or client bank backend installed on a computer through which cashing transactions are made), (c) if access to them is restricted by the owner, in particular, by setting a password.
Despite those broad exceptions, in general, the norm should ensure the inviolability of office computer infrastructure. In practice, investigator will be unable to abuse the right to carry out examinations of equipment, as this requires a specific court decision.
However, you should be ready to provide passwords to servers, computers and telephones, and also allow the copying of information from them. By the way, the SSS and NABU already possess special portable devices that can unblock mobile phones and automatically check for 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 increased.
Firstly, audio and video recordings of the consideration of an investigator’s motion in court are being introduced. This will exclude the possibility of the filing of unjustified motions. Investigators will be forced to prove the importance of their desire to “make a visit,” and the judge will be more attentive to these arguments, since this record may be investigated in 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 pliant judge.
In combination with the new search rules, this should lead to a reduction in the number of “uninvited guests in epaulets” and cases of blocking of
companies’ activities.
4. The right has been introduced to appeal against investigators’ 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 prevented a company from being able to remove 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 charges have to be dismissed, if under the same circumstances a resolution was taken earlier to close the case. There are anecdotal cases when the tax police initiated proceedings on the non-payment of taxes, and then their colleagues from the police and SSS initiated their own investigations on the same case, but called it embezzlement to circumvent the investigative jurisdiction. A similar approach was also used on a geographical principle.
6. It is possible to close “formal” criminal proceeding, which have been “kept” for years in the register, allowing investigative actions to be carried out at any time, and accordingly, kept businesses on tenterhooks. In some cases investigations have gone on and on, the case-related investigators and prosecutors have been replaced by new investigators and prosecutors, who, in turn, have generated new activity to replenish their own cash, if not with money, then at least with gasoline coupons.
7. The law provides for the appointment of a special commission at the Cabinet of Ministers that will generalize the practice of the actions committed by law enforcement officers in relation to business, and provide mandatory recommendations for consideration. The law does not establish clear powers for the above commission, but the availability of such a tool will allow it to influence the situation.
It should be noted that the “Stop Masks-Show” amendments were not the only changes and to procedures last year. The Verkhovna Rada also introduced, when adopting new procedural codes (civil, commercial, administrative), amendments to the Criminal Procedure Code.
Both groups of changes and amendments knock out of the hands of corrupt officials tools for pressurizing and blackmailing business. Searches recorded on camera and conducted in the presence of attorneys-at-law, the inability to seize servers and computers, and blocking the initiation of “empty” and unpromising criminal proceedings should significantly reduce unlawful interference by the law enforcement agencies in business activities.
