LAW FIRM DIRECTORY

Dispute Resolution |

All the hell out!

Legislators tried to refine the face of the law-enforcement system in order not to blush before foreign investors: to add correct traits to it with the help of mechanisms for protecting business from abuses of "power". But lawyers fear that law-enforcement officers will adapt any, even the most stringent, new rules to their old habits

OLGA KIRIENKO

WITH NOISE AND DUST

 

In 2017, as in previous years, rough activity was observed in the "criminal" field. Over the last few years resonant criminal proceedings against famous persons, mostly powerful ones or politicians of the "previous generation", have become the corporate style of the bodies of pre-trial investigation. And it is possible to recognize such cases "by a pattern". As a rule, the fact of the start of high-profile criminal proceedings can be heard during press conferences of the management of law-enforcement or security agencies, which in their public statements, violating the presumption of innocence, do not just hang on the defendant in the case getting the label of suspect even before receiving the relevant procedural status, but also speak of his guilt as an already proven fact. Such criminal proceedings have a flip side, namely the lack of judicial perspective. However, it is often overlooked, because in "reputation wars" the heightening of public interest for several days is quite enough.

The fight against corruption was a priority in the work of representatives of the law-enforcement system and the bodies of pre-trial investigation in 2017. In this case, the main source of inspiration was a statistical well-being, while an anti-corruption direction was "put on the counter" at once by several departments. Thus, a kind of calculator of the fight against impurity at hand was placed on the main page of the official website of the Prosecutor-General's Office of Ukraine (GPU). By the end of November 2017, the following figures were included in the corresponding calculation: more than 8,700 recorded facts of bribery and other corrupt crimes; almost 2,800 cases submitted to a court; about 430 convicted persons.

Parallel public recording of performance in this area was also kept by the relevant agency — the National Anti-Corruption Bureau of Ukraine (NABU), though the indicators of its "counter" are not as impressive as those of the GPU. The NABU’s results in the language of figures are as follows (data as of October 31, 2017): 461 pending proceedings; 293 reports of suspicion; 149 accused; 97 cases submitted to court; UAH 87.2 billion in losses from crimes under investigation.

The covert competition between GPU and NABU, outlined already in 2016 and visualized, in general, in public outbursts of the management of these two bodies against each other, developed into an open confrontation in 2017. In mid-November of last year, the main opponents exchanged "courtesies" in the criminal law aspect: the media almost simultaneously had information that GPU opened a criminal proceeding against Artem Sytnyk, director of NABU, allegedly for disclosure of information constituting a state secret (under part 1 of Article 328 of the Criminal Code (CC) of Ukraine), and NABU filed a case against Yury Lutsenko, the country’s prosecutor-general regarding possible unlawful enrichment (under part 3 of Article 3682 of the CC).

 

BAD INVESTIGATIVE JURISDICTION

 

NABU may soon acquire a new competitor called the State Bureau of Investigation (SBI). In accordance with the original philosophy of the Criminal Procedure Code of Ukraine (CPC) of 2012, this body should have been formed in our state before November 19, 2017 and engaged in pre-trial investigation of criminal proceedings in respect of "special" subjects: law-enforcement officers, judges and senior state officials. But in 2014, the legislative vision of SBI competence was conceptually changed. The SBI’s functionality was considerably narrowed in connection with NABU’s creation: while initially its remit was limited only to parties, the filter was then also set for the list of crimes under pre-trial investigation.

The official year of the birth of SBI was 2016. On March 1 of that year, a special law regulating its activities came into force, after which  the Government adopted a Resolution on SBI’s establishment. However, the birthday of the new Bureau was marred by practical difficulties: the courts refused to accept and consider petitions from investigators of the prosecutor's office in proceedings under investigation of the new law on the SBI in connection with the filing of these procedural documents by unauthorized persons. This problem was solved only after the relevant explanation was provided by the Supreme Specialized Court of Ukraine for Civil and Criminal Cases.

A similar situation was repeated in 2017 after the deadline for introduction of part 4 of Article 216 of the CPC came into effect, which establishes the rules of the SBI’s investigative jurisdiction, on November 19. After the said H-hour occurred, the prosecutor's office lost its provisional powers to investigate crimes investigated by the SBI. The investigators at the prosecutor's office only have the right to "further investigate" the criminal proceedings initiated by them under the SBI’s investigative jurisdiction, for a period not exceeding two years.

As, within the five-year term set by the CPC, the SBI has never operated (the search for the head of this body were conducted over the last year and a half, which ended only on November 16, 2017, when the relevant Competition Commission recommended to the head of state the appointment of Roman Truba to the post of SBI director), a legal vacuum was created: there was simply nobody to implement a pre-trial investigation of criminal proceedings against "special" subjects.

The way out of this stalemate situation was found at the GPU. The instruction was placed on the site of the country’s main Prosecutor's Office, according to which it is possible to solve this problem by the heads of prosecutor's offices using powers to assign the carrying out of a pre-trial investigation to another body of pre-trial investigation under part 5 of Article 36 of the CPC, and by procedural heads — the right of personal conducting of investigative (search) and procedural measures.

 

RESTRICTION FAITH

 

In 2017, the problem of pressure from law-enforcement agencies became particularly urgent for business. As the practice of the Business Ombudsman Council shows, along with tax and customs issues, illegal actions by state regulators and local self-government bodies, business is also concerned about abuse by the security forces. During one public event, Algirdas Šemeta, the Business Ombudsman in Ukraine, reported that the institution headed by him had, as of the beginning of November 2017, received 436 appeals regarding the actions of law-enforcement agencies, 237 of which have already been considered: in 75% of cases it was possible for business to achieve a positive result (closure of criminal proceedings, removal of seizures from accounts, etc.).

Indeed, the warming of the business climate in Ukraine began in autumn 2017. The "Indian summer" came in the criminal procedural legislation as if according to the calendar — in early October of last year, when during the parliamentary finalization of a rule-making creation within the current procedural stage of judicial reform — consideration of draft law No. 6232 in the second reading — MPs tried to adjust separate provisions of the CPC. From the point of view of businessmen (judging by complaints received by the Business Ombudsman Council), the main problem section in criminal procedural legislation was the absence of the right to appeal against the entry of data in the Unified Register of Pre-Trial Investigations (URPTI) and, as a consequence, the possibility to prevent a pre-trial investigation in the event of unjustified opening of criminal proceedings. In addition, criminal cases can be investigated without any time limitation, because current legislation sets the time limit from the day a person was served with a notice of suspicion of committing an offense. In reforming procedural legislation, parliamentarians proposed, inter alia, to establish a time backlash so that a person can obtain the official status of a suspect: to determine the terms of pre-trial investigation from the moment information is entered about a criminal offense in the URPTI prior to the day a person is notified about suspicion.

The fact that on October 5, 2017 Prosecutor-General Yury Lutsenko signed a guidelines letter for his deputies and heads of regional prosecutor's offices in order to prevent violations of the rights of business entities during searches, also encouraged optimism in representatives of the business sector. Such procedural action is particularly popular with law-enforcement officers: according to the Business Ombudsman, in 2016 alone about 97,000 petitions for searches were filed, and in the first half of 2017 about 60,000 were filed.

The law of Ukraine "On Amendments to Certain Legislative Acts to Ensure Compliance with the Rights of Participants in Criminal Proceedings and Other Persons by Law-Enforcement Agencies during the Pre-trial Investigation", adopted in record time, should help to reduce the "appetite" of law-enforcement agencies for conducting such investigative measures and reduce the risk of abuse during searches. The relevant legislative initiative submitted by the Government (draft law No. 7275) was registered in Parliament on November 10, 2017, and within one week, on November 16, it was considered by MPs and approved in the first and final readings.

In order to provide additional guarantees of legality in the course of searches, the specified law amends a number of articles in the CPC. Among other things, compulsory video recording in the course of such investigative measure and during consideration of relevant petitions by the investigating judge (except for the decision to conduct secret investigative (search) actions) was provided for. This video recording is an integral attachment to a report on a search.

Along with the optimism, the proposed legislative "panacea" from the pressure on business raises fears among lawyers. The issue is not even the fact that in a detailed analysis of these changes the intention of the authorities to introduce restraints from possible "power" abuses looks in many ways declarative. Experts have already said that the proposed innovations in the part on counteracting unjustified seizure of electronic information systems are in direct opposition to the declared purpose of protecting business and will lead to even more violations on the part of law-enforcement agencies. The main problem is not the quality of legislative instruments, but their arbitrary use by law-enforcement agencies.

Practice Leaders. Criminal Law

Leading Individuals

1

Vitaliy Serdyuk (AVER LEX)

2

Evgeniy Solodko (Solodko & Partners)

3

Olga Prosyanyuk (AVER LEX)

4

Sergiy Grebenyuk (Egorov Puginsky Afanasiev & Partners Ukraine)

5

Denys Bugay (VB Partners)

Other Notable Practitioners

Listed in alphabetical order

Igor Cherezov (Cherezov & Partners)

Artem Drozdov (AVER LEX)

Kateryna Gupalo (Arzinger)

Igor Fedorenko (AVER LEX)

Yevhen Hrushovets (Ario Law Firm)

Tetiana Lysovets (Sokolovskyi & Partners)

Artem Orel (Ilyashev & Partners)

Denys Ovcharov (Juscutum)

Taras Poshivanyuk (EQUITY)

Igor Samoletov (Alekseev Boyarchukov & Partners)

Angelika Sitsko (GOLAW)

Sergiy Smirnov (Sayenko Kharenko)

Oleg Vdovychen (Vdovychen & Partners)

Leading Firms

1

AVER LEX

2

Solodko & Partners

3

Egorov Puginsky Afanasiev & Partners Ukraine

4

EQUITY

5

VB Partners