"The shift in focus from qualitative investigation to the number of proceedings opened and high-profile processes was the main trend of 2017" VITALIY SERDYUK, ATTORNEY, SENIOR PARTNER OF AVER LEX LAW FIRM, SHARES HIS OBSERVATIONS
— Five years have passed since the Criminal Procedure Code (CPC) of Ukraine came into force. Did all "pro-European innovations" envisaged by it pass the test of time and practice?
— During these five years, the majority of so-called pro-European innovations laid down in the CPC have undergone significant conceptual changes. Instead of the claimed humanization, the opposite trend is being observed, namely the tightening of criminal procedural legislation.
For example, for the criminal process of 2012, introduction of the institution of agreements for admission of guilt became an innovation. Subsequently, the scope of application of this mechanism was expanded: the CPC was amended to provide the prosecutor with the opportunity to conclude an agreement on admission of guilt in particularly serious crimes too. This step entailed abuses by the investigative authorities, which in exchange for the application of a minimum sentence, for example, in a number of the most frequently incriminated articles (Article 255 of the Criminal Code of Ukraine, together with the "commercial articles", the section on corruption, accusations of financing terrorism) may require the suspect to testify against other persons.
A one-year limitation of the maximum period of pre-trial investigation became another innovation of the CPC. However, in March 2017, Article 219 of the CPC was supplemented by a provision stipulating that the period of review of the records of criminal proceedings by the parties is not included in the period of pre-trial investigation. Again, this provision worsens the position of the person under investigation, and allows the investigation to manipulate the terms, and to delay submission of the case to court.
— At the current stage of judicial reform, systemic correction of the CPC is not provided for. However, it is more than compensated by the number of point changes made. Were the innovations always appropriate?
— The introduction of a large number of changes to the CPC in recent years does not mean that they were all necessary and appropriate from the practical point of view. There is a kind of imposition of changes that facilitate the work of law-enforcement agencies rather than promote the observance of rights of participants in criminal proceedings.
If you pay attention to the chronology of amendments in the CPC, say regarding the procedure of so-called investigation in absentia, you can observe a certain bias. In 2014 – 2015, the CPC included the provisions on the possibility of investigation "in absentia", provided that a person is in the interstate and/or international search, and in spring 2016 the Ukrainian Parliament adopted a law according to which the requirements regarding the search for a person became temporarily (until 15 April, 2017) non-mandatory. However, as early as 16 March of last year, another law, designed to "improve" the mechanisms for ensuring the tasks of criminal proceedings, again extended the temporary special procedure for the implementation of an investigation "in absentia".
In this case, changes that are really necessary to improve criminal procedural legislation, for example, introduction of real mechanisms to minimize pressure on business from law-enforcement agencies have not, unfortunately, been made so far.
— Let's move from the legislative theory to practice: what trends emerged in practice in the past year?
— The main trend of 2017 was the shift in focus from qualitative investigation to the number of proceedings opened and high-profile processes, yielding political dividends to their initiators. It is no secret that in recent years the authorities have been trying to justify the trust of society and to distract the population from pressing problems with the help of "demonstrative processes": criminal prosecution of representatives of the previous authorities, political competitors or other persons who are "out of favor". High-profile detentions of politicians take place with enviable frequency, accompanied by public accusations made by senior state officials and the heads of law-enforcement agencies, which violate the presumption of innocence and the secrecy of pre-trial investigation. Through the mass media, judges are given instructions on adopting necessary decisions, and groups of persons calling themselves "activists" are sent to courts for the sake of credibility, thereby leveling in full the constitutional principle of judicial independence.
Pre-trial investigation of high-profile cases and application of a measure of restraint of their defendants are accompanied by participation of public activists, and covered by all leading TV channels, but, as a rule, such criminal proceedings end with nothing. Obviously, the authorities are not interested in the quality of pre-trial investigations and the expected result in the form of a guilty verdict (since all of this may last for years!), but in sensational process on the basis of a hastily "cobbled together" criminal proceeding, which usually does not reach court.
— What criminal risks did business face in 2017, did new tools of pressure on owners and top management of business appear?
— The most common risk can be called the initiated process of "property redistribution", involving old raider schemes and with the participation of law-enforcement officers. The aforementioned instrument is used in corporate wars to block the business activities of a competitor by imposing seizure on assets, and often creating fictitious criminal proceedings against owners.
It is worth mentioning "unspoken" competition between the Security Service of Ukraine, the Prosecutor-General's Office and the National Anti-Corruption Bureau of Ukraine (NABU), which for business can result in several criminal proceedings on the circumstances of the same event, due to the "creativity" of these bodies in the qualification of wrongful acts.
The active practice of framing criminal proceedings under the cover of fighting illegal gratification (bribery) was another trend in 2017. There are cases of accusation of the "necessary" persons in receiving/giving bribes only on the basis of testimony of two or three previously unknown persons who allegedly transferred/accepted a "bribe" in the interests of the detained person. And further in detailed verification such persons turned out to be "agents" whose constant work is writing relevant statements and staging the handing over of a bribe.
— How did the legal market react to the challenges it faced in the criminal sphere?
— There has recently been a boom in the opening of criminal practices both among multiservice law firms and among the Big Four companies. In general terms, in most cases the involvement of such practices in criminal proceedings usually ends at the pre-trial stage, and complex criminal cases continue to be outsourced at the "hot" stage.
Due to the high risk of pressure from the state on other clients of these law firms, such cases are served by individual attorneys, but mostly by systemic highly-specialized law unions, which are able to simultaneously conduct a large number of cases with parallel elements. In addition, many of these cases are multi-jurisdictional, so they are accompanied by involvement of foreign legal advisors and, vice versa, foreign companies enlist the support of Ukrainian law firms.