Checkmate in one move
"We need to find the strength to act only lawfully, as the slightest unlawful step will lead business into the trap of intruders", — Anzhelika Sitsko, attorney, partner at GOLAW, warns
— How safe is it today to run a business in Ukraine in terms of criminal risks?
— If a company seems to operate in accordance with the law, it has nothing to fear. This year, however, many companies have faced searches of them being carried out and the bringing of criminal proceedings against business owners. Unfortunately, it seems that their number will increase exponentially.
The state failed to establish necessary oversight over the activities of its law-enforcement agencies, which do not consider themselves obliged to fulfill the requirements of the law. Criminal law is often used for low-life private purposes, and greed for a quick profit prevails over common sense.
— What danger do such actions by the authorities bring?
— It will become increasingly difficult for companies to protect their interests. Business eventually loses faith in legal ways of regulating relations and dances to the tune of careless law- enforcement officers, putting itself in a dangerous position. Due to pressure from law- enforcement officers, business owners see the possibility to resolve everything in an "informal" manner as one effective way out. This moment can be called the point of no return, when the machine called "Law-based Business", successfully flourishing in our country, is activated.
At the same time, for society "Law-based Business" is positioned as actions of little-known individual bribe takers, but this "industry" actually has a more global dimension.
If you decide to do business in Ukraine, don't expect that corruption and extortion will not affect you. You must always be prepared to protect your business and to stand up to unlawful pressure.
— Is it possible to recognize the first signs of pressure?
— The most common instrument of pressure is criminal law procedures. They are most destructive and dangerous due to their nature.
An unexpected search should alert the owners. Certainly, any search is carried out without prior notification of the time and date, but if the enterprise did not receive any requests from law-enforcement officers, the employees were not interviewed and called for questioning before a search, i.e. there were no mutual relationships with law-enforcement officers, this is a wake-up call. An investigator in criminal proceedings has sufficient tools to gain access to documentation regarding business activities of a legal entity without a search: he may file a request, obtain judicial access to documents through seizure, etc. If the investigator has not used such tools then, more than likely, there are no grounds for criminal proceedings.
A search carried out by operative staff without an investigator, may also be testimony of this fact: the action does not affect the tasks of criminal proceedings, there is nothing to investigate, and the true purpose of the search is to intimidate and find clues to put pressure on the owners.
The seizing of objects, whose seizure was denied by a court or which do not apply to the claimed subject of investigation, is another danger signal. The courts mostly allow access to primary documents related to business activities, as only they are the main evidence of "economic crimes" in ordinary criminal proceedings. When everything and anything is seized without an inventory, they are searching not for evidence of guilt, but for leads for further pressure.
— What tools can still be used by "Law-based Business"?
— If after the conducting of a search the company owner does not get in "contact", then steps are taken to suspend the work of the company: goods, equipment, transports, funds in accounts are arrested. Key employees may be intimidated by criminal responsibility, the operation of shops or warehouses may be paralyzed through the holding of inspections, checks, inventories and audits that run into many days. If the company employs foreign citizens, their work permits and residence permits can be revoked, and they can even be expelled from the country. Attempts to suspend foreign economic activities, cancellation of licenses, and the withdrawal of goods from circulation are possible.
There is one goal, "to organize" a crisis and place the business viability in jeopardy.
— How is a victim defined?
— Incredible as it may seem, but the ultimate reason for law-enforcement officers to come is the success of a business — an unsuccessful business will not be considered a potential source of unlawful enrichment. Success is a magnet for "Law-based Business". Therefore, if the company's business is looking good, it is vitally important to prepare to defeat these types of attacks. Care should be taken with the personal security of owners and top managers. Every step in business, in addition to honestly and properly executed documents, must be strengthened with serious legal protection.
— What does protection include?
— It is necessary to assert the rightness and legitimacy of activities selflessly, firmly and, above all, honestly. You must categorically not resort to illegal actions or commit acts contrary to company values and the law. The slightest illegal step in this fight will lead you into a trap. You need to find the strength to act solely in a lawful manner and do not be afraid to seek professional advice.
If a company received a request from law-enforcement agencies, there is no need to rush to submit what is listed in it. You must first contact the executor; request an extract from the register of pre-trial investigation, confirmation of the powers to conduct proceedings. You should also make sure that the required information is official and has a direct bearing on the subject of the investigation. The entrepreneur is entitled to know the subject and framework of the investigation, who is running the case and the persons against whom criminal proceedings have been opened. Requested information and documents may be provided to law-enforcement officers only after confirmation that law-enforcement officers operate in a legal manner, and disclosure of data will not harm a company.
If a search is already in progress, it is necessary to be persistent in demanding receipt of legal assistance and insist on the presence of a lawyer during the search. It is important to draw the attention of witnesses to violations committed directly during the search, rather than after its completion. The drafting of acts regarding violations on the part of law-enforcement officers and their witnessing by witnesses are of great importance. In cases of significant violations, you should demand the arrival of a prosecutor; he must either share the responsibility for violations, or end the lawlessness. If you have the slightest doubts about the legality of the grounds for the search, it is necessary to initiate verification of the authenticity of the permits and the powers of persons who took part in their possible falsification.
Despite the stress, it is important not to let yourself be intimidated and not to lose vigilance. Thus, you should always examine the text of the record of interrogation, and if it does not have all questions raised, explanations provided, references to all documents, you need to make additions personally, since law-enforcement officers often resort to a trick, failing to enter into a record data on so-called trick documents, because their origin is of questionable legality.
— Most algorithms are aimed at protection; but can business take an active position in this confrontation?
— Yes, and such actions will often have the desired effect. For example, you can initiate examinations, research by specialists, conduct inventory and measurements. This keeps you one step ahead of crooked law-enforcers. It is advisable to notify the State Employment Service, immigration and frontier services of possible unlawful acts against a company's foreign employees and banks, courts, licensing authorities of illegal actions that are being prepared against the company and require their active participation in the restoration of the rule of law.