LAW FIRM DIRECTORY

Criminal Law White-Collar Crimes

VITALIY SERDYUK,
senior partner at AVER LEX Attorneys at Law

ARTEM DROZDOV,
partner at AVER LEX Attorneys at Law

The high and mighty

Modern criminal practice is characterized by complicated cases regardless of whether there’s a resonant factor in them. Usually, in such cases there is a personal financial or political interest on the part of those who have significant administrative and media resources and influence decision-making via law-enforcement agencies. The category of extraordinary complexity includes cases with an international element which are becoming increasingly "popular"

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This category includes situations when a person involved in criminal proceedings or his/her assets are located abroad or an investigation is carried out both by foreign and Ukrainian law-enforcement agencies. Due to the peculiarities of the domestic legal system, in such cases it is necessary to use international legal leverage to protect clients effectively.

Analyzing popular client requests, we see an increase in demand for criminal cases with an international element, which can be divided into four categories.

The first one is representation of interests in cooperation with Interpol on detection issues. Ukrainian law-enforcement agencies, initiating the issue of a wanted notice, are primarily interested in Interpol issuing a "red notice". Such situations are not uncommon and are often associated with pressure and illegal prosecution of a person through the imposition of a number of restrictions on him/her. Accordingly, the main tasks of defense in such cases are, first, to initially prevent the unreasonable issue of a wanted notice, and second, if a wanted notice has already been issued, to terminate it by excluding the person’s notice from the Interpol database or by "darkening" it.

The second one is the protection of the client's assets abroad. The most common risks in such cases are those associated with conducting investigations in Ukraine. Within the framework of these investigations, national law-enforcement agencies initiate the seizure of assets located outside Ukraine which, allegedly, were obtained as a result of illegal transactions. The qualification "laundering of property derived from crime" is most often used, since this is an extremely serious offense both under European and American law. A similar situation occurs when foreign law-enforcement agencies initiate investigations independently. Now, the owners of assets should take into account the stiffening of financial and banking monitoring in foreign jurisdictions like the United Kingdom, Switzerland, and the USA, as a result of which criminal investigations are initiated regarding the legality of capital formation or sources of property acquisition. Moreover, such investigations can be carried out even in relation to the relatives of suspected persons. In one prominent case, some time after holding a person liable in his country (that is, the investigation against him was already completed) foreign law-enforcement agencies initiated a new investigation against his wife in connection with significant spending at the Harrods department store in London.

Also, British law-enforcement agencies have initiated a number of cases demanding the confiscation of property, for which there is no evidence of fair acquisition, against residents of Africa, South Asia, Russia and Eastern Europe countries. They receive information on such persons from other law-enforcement agencies, foreign government and non-government organizations. A new tool was introduced, that of a warrant obliging a person with assets in the UK in the amount of 50,000 pounds or more to provide evidence of their legitimate acquisition with the confirmation of earnings. Five tax and law-enforcement agencies can initiate these orders regarding the authorities of other countries and those suspected of having committed serious crimes in the UK or abroad.

Removal of a person from a foreign sanction lists is among popular cases that contain a foreign element. Now, the main work is carried out on the removal from the sanction list of the US Treasury Department (Specially Designated Nationals and Blocked Persons List, or SDN List) (communication in this direction is mainly carried out with the Office of Foreign Assets Control (OFAC)) and from the European Union sanction list (in this case, dialog should be carried on with the EU Council and ambassadors). In addition, many client requests relate to removal from the "black lists" of Ukraine and the Russian Federation.

And finally, the fourth category of cases is the representation of interests of the affected party in cases of international financial fraud and search for assets abroad.

Given the particularities of the above criminal cases containing an international element, different international legal tools should be used to protect clients in an effective way. The involvement of international human rights organizations and the establishment of efficient cooperation with them is one such tool. The approach taken by such institutions (prepared reports, monitoring of cases that are investigated in Ukraine) is often more significant and provides more confidence than the opinion of the party to the criminal process. In addition, monitoring by foreign human rights organizations is a kind of deterrent against possible abuse and flouting of the letter of law by Ukrainian law-enforcement officers. Recording of offenses and their indication in relevant findings and reports is an absolute plus for participation in international trials, not only in judicial ones: starting from challenging the actions of the state in the European Court of Human Rights and ending with solving the issue of extradition of a participant in criminal proceedings to Ukraine. Membership of professional organizations like the International Bar Association (IBA), the European Criminal Bar Association (ECBA) and cooperation with them, as well as participation in well-known international human rights conferences, are important.

In our practice, responses on the part of professional government organizations responsible for the respect for human rights, as well as authoritative foreign institutions, such as the UN, the OSCE, the European Parliament, and the Bundestag, can be efficient for the defense of clients.

Media, both Ukrainian and foreign ones, are an important lever of influence over the processes taking place in Europe and the USA. Therefore, it is important to organize efficient work in the area of public defense. In fact, all organizations, including Interpol, when making decisions, are guided by publications in the media. Communication with the media is also important for the formation of public opinion on certain issues.

Another mechanism is the organization and conduct of foreign expert studies and getting the opinions of the relevant international experts on investigation materials (financial, military, linguistic and other expertise). The views of foreign experts are especially important in cases with a political context or cases related to conflicts with the state when the opinions of domestic experts could stir up the distrust of the parties or when, due to pressure from representatives of state authorities, it’s impossible to conduct an independent examination in Ukraine.

Reliable partnership relations at local level, particularly with fellow lawyers who specialize in providing assistance when solving relevant issues, especially when it comes to comprehensive protection of clients in foreign jurisdictions, are equally important.

In any event, no matter which international elements exists and what levers of influence an attorney has access to, in this category of cases, well-coordinated work in the areas described above, formation of a comprehensive international protection plan, as well as control over its implementation, are the key to success. Despite all the circumstances and conditions, unshakable faith in victory is the key point and the main secret of success.