Changes to the CPC of Ukraine “Mask Show Stop”. Did Business Get Effective Instruments for the Protection Against Abuses by Law Enforcement Agencies?
Author: Denys Bugay, attorney-at-law, White-Collar Crime practitioner, partner of VB PARTNERS law firm
Recent changes in criminal proceedings introduce effective instruments that significantly reduce the possibilities of illegal actions of law enforcement officials.
This applies both to conducting investigative actions aimed at business and the initiation of various “formal” criminal proceedings, the sole purpose of which is pressure and extortion.
Those changes include the following:
- New rules for conducting searches. Investigators are obliged to record a search operation on video and let the attorney take part in a search at any stage. If this rule is not observed all evidence obtained is inadmissible and cannot be used as evidence in court.
- Prohibition of unwarranted seizure of information carriers and computer equipment (hardware, servers, telephones, etc.).
(а) objects are needed to conduct an examination,
(b) they were the instruments of crime or were criminally obtained,
(c) the access to them is being restricted by the owner, for example, by way of passwords.
Notwithstanding such exceptions, this norm should ensure the integrity of the computer infrastructure of the office.
- The tighter requirements for obtaining a search warrant have been imposed. An audio recording of the court hearing of the investigator’s request and the prohibition of re-appeal in the event of its rejection are introduced. The first should exclude the possibility of filing unsubstantiated requests. In conjunction with the new search rules, this should decrease the number of “uninvited guests in uniforms” showing up and cases of blocking companies activities.
- The right to file appeals against the actions of investigation has been introduced. Only the party in criminal proceeding previously possessed such right. This norm, being strictly read, ruled out the possibility of the company to legitimately stop the pressure put on it by investigation.
- Blocking the process of initiating criminal proceedings on the same subject matter by different authorities an infinite number of times. No state body can conduct an investigation if a decision to close the proceedings has previously been issued concerning the same subject matter.
- Now there is possibility to close “formal” criminal proceedings, which “hung” in the register for years and put enormous pressure on business, allowing the possibility to conduct investigative actions at any time.
- A special commission is set up under the Cabinet of Ministers, which will compile the practice of the actions of the law enforcement officers regarding the business and issue recommendations that are mandatory for consideration. Unfortunately, the law does not clearly prescribe the powers of such a commission. However, even the availability of such a tool will have an impact on the situation.
Understanding the details and mechanisms of these changes, as well as the active position of the business community, will allow business to feel confident in communications with law enforcement agencies, including during searches; exclude the possibility of blocking the companies’ activities by removing computer equipment and software; stop blackmail (by way of initiation of “formal” unwarranted and unsubstantiated criminal proceedings).