"The success of the defense project in a WCC case is largely determined by the failure to serve the notice of suspicion to the client. Behind such success, there is always coordinated painstaking work on the part of a small 'boutique' team of professionals"DENIS BUGAY, ATTORNEY, PARTNER AT VB PARTNERS, ASSERTS
— What kind of attorney does a business need today when it comes to having defense in a White Collar Crime (WCC)?
— The problem of finding one’s "own" lawyer for a corporate client is down to the fact that business and classical criminal attorneys each speak their own language: the client speaks the language of the corporate world, and the attorney speaks the language of the criminal world.
Since businessmen think in terms of consistency, predictability, convincing grounds and logical interrelation, profound risk analysis not only for a particular person or case, but also for the business as a whole, the requirements the y set for attorney are much higher. Therefore, for successful work in WCC, the lawyer should not only be an expert in the criminal law and process, but also have excellent knowledge of corporate law, securities, and antitrust laws. Certainly, he/she needs to be competent in banking transactions, principles of corporate restructuring and transactions, so as to understand how business works and operates.
Knowledge of English to a high level is another almost unspoken compulsory requirement. 90 % of cases in WCC have a foreign element, since these cases literally have no borders today. For example, we supported a case in six European jurisdictions simultaneously.
The "entry" of an attorney into prosecution and judicial circles no longer gives any positive effect, quite the opposite. The high professional level of the National Anti-Corruption Bureau of Ukraine and Specialized Anti-Corruption Prosecutor's Office work, their independence and rejection of the corrupt practices of old law-enforcement agencies, as well as the frequent change of political teams, level any affiliations. Today, the correctness of strategy, active work on the collection of evidence and a clear and understandable public position are the only things that matter for the defense side in an anti-corruption case.
— What defense strategy do you prefer?
— We always focus on a strategy that will enable a particular client to preserve, first and foremost, his/her personal freedom, reputation, health, and business.
Although, the Constitution of Ukraine allows a person not to prove his/her innocence, we recommend our clients to always have an active defense strategy. Waiting until investigators serve a notice of suspicion and bring a case to a court for the purpose of choosing pre-trial restrictions involves risks for a client’s freedom. We begin the defense, collect evidence and actively communicate with the investigation from the very moment that the investigation begins (before the first investigative interview). This method contributes to the client's confidence and sets him/her up to fight, not to dodge. However, we should understand that a fight always requires considerable resources and costs.
— Do you advise clients to leave Ukraine whenever possible?
— It's no secret that sometimes the only way to save yourself, your family and business is to go abroad. This happens in blatantly ordered criminal proceedings, which have nothing to do with establishing the truth, fighting corruption or financing terrorism, but are merely a tool of pressure on business, pure extortion.
If a trip abroad is necessary and unavoidable, including to preserve health, we recommend that our clients inform the investigator on the reasons and circumstances of the trip, to communicate with him/her, actively cooperate (share data, send documents) and apply for investigative actions within the framework of international cooperation. A reminder that one of the key reasons for removing the Interpol red notice or refusing to extradite a person is real demonstration that the client is not hiding, has revealed his/her location, and actively cooperates with the investigation.
— How dangerous and realistic is it to be on the Interpol database, or are these merely horror stories from the prosecutor's office?
— Ukrainian investigators and prosecutors very often use Interpol as a tool for pressure. They serve a very formal notice of suspicion, receive a court ruling on permission to detain a person for the purpose of choosing pre-trial restrictions and due to this they are able to put this person on national and international wanted lists.
In such a situation, it is extremely important for the defense to be the first to contact Interpol. Domestic procedures of international police allow applying for a preliminary appeal, indicating the potential intention of law-enforcement officers and explain how such an initiative violates Interpol rules.
This allows us to form a critical attitude towards Interpol regarding the grounds and necessity of detection before the receipt of a request from Ukraine. It is easier to prevent the issue of a wanted notice than to cancel it later on through the Commission for the Control of Interpol's Files.
And this tool gives a positive result. In our company’s practice, in the past year alone, there were two successful cases when Interpol refused to issue a wanted notice, so our clients could move freely around the world and law-enforcement officers have lost their lever of pressure and intimidation.
— If a client is on an international wanted list, what could the defense tactics be?
— There are no doubts and illusions that the Interpol base is an efficient tool, especially in our times of open information. Border crossing, any electronic registration, banking transactions, car rental, social media, along with operative-search measures contribute to the efficient detection of suspects.
If a person is found within the framework of Interpol procedures, the initiating state is notified of his/her arrest, and the person is placed in a temporary detention facility for the period of extradition. When it is possible to prove that the person is registered in the country of detention (an officially rented apartment will do), then house detention can be attained.
Though a very formal question is being addressed at the stage of judicial control (the sufficiency of the initiating country request), the defense team should make the court pay attention and evaluate a wider range of circumstances and facts. First of all, it is necessary to prove the groundlessness of the charge, i.e., to single out the facts (for example, an expert opinion), indicating the senselessness of suspicion and the absence of a criminal act.
Also, arguments as to the lack of real guarantees of the right to a fair trial in Ukraine, lack of respect for human rights while a person is under preventive detention in Ukrainian pre-trial detention facilities (‘SIZOs’), and the threat of torture can become the defense's trump card. It is necessary to pay attention to any violations of the detainee's rights by the investigation authorities. Reports and records of international and human rights organizations (UN High Commissioner for Human Rights, Amnesty International, Council of Europe Committees, Human Rights Commissioner of the Verkhovna Rada), as well as reports in authoritative media outlets (including foreign ones) can become a helping hand.
— What does successful defense in WCC mean to you?
— For us, the criteria for the success of a WCC project is to build tactics in such a way as to prevent the serving of a notice of suspicion. This is what triggers irreversible processes, including in terms of the choice of pre-trial restrictions. All events that accompany a suspicion negatively affect both the reputation of the owner/top manager and the business. Losses incurred can be enormous.
Therefore, we collect all possible materials and evidence, develop a PR strategy at an early stage, when we receive the first information about potential problems. We do 80 % of the work in WCC projects at this stage and by the time of the first judicial control we fill the case with exculpatory evidence refuting the version put forward by the investigation. In fact, we put the investigation before a choice: to submit a blatantly unreasonable notice of suspicion or to refrain from doing so.