Today The Deposit Guarantee Fund is already liquidating 90 banks. Part of the former management of these banks got to a new rating - wanted for embezzlement in especially large amounts. Investigators and prosecutors for some reason consider the bank's clients to be accomplices of the fugitives and, in the usual hasty manner, flood the courts with motions for the seizure of property: both with grounds and without grounds. In addition, the chances of granting the petition in both cases are the same.
Such motions follow the simple idea of the investigator: first to arrest everyone, and then to act based on the situation. Long lists of property for seizure are transferred from investigators' motions to court rulings. The lists often include accounts of legal entities-counterparties opened in liquidating banks. Investigators mistakenly believe that the accounts of such legal entities may contain money acquired illegally. As a rule, investigators do not attach any evidence that confirms the illegality of financial and economic transactions. As a result, the accounts of companies are blocked without any grounds.
The ability to seize property provides Art. 170 of the Criminal Procedure Code of Ukraine. However, there are situations when the courts forget that only property that is evidence of a crime can be seized; subject to special confiscation from the suspect, accused, convicted person, third parties, confiscation from a legal entity, possible confiscation of property; to ensure a civil lawsuit, recovery from the legal entity of the illegal benefit.
Neither the investigator nor the prosecutor has the right to seize the accounts on their own. To do this, they go to court. Accordingly, it is also possible to lift the arrest only in court. The appeal procedure depends on the presence of a representative of the legal entity at the court hearing during which the request for seizure of property was considered.
If a representative of a legal entity is present, he has the right to appeal the decision in the court of appeal, if not - to file a petition to lift the seizure of property in the court of first instance. Defenders often practice the following life hack: if a representative was absent at the time of the arrest request, they must go to the court of first and appellate instances at the same time and then choose the court, depending on who will first appoint the case. Why not? Due to the congestion of the courts have to go to small tricks, otherwise you have to wait too long.
How to strengthen your position in court? It must be proved that the officials of the injured legal entities are not suspects or accused in criminal proceedings. The absence of suspicion indicates that a civil lawsuit was also not filed. A civil lawsuit may arise in the future if the suspicion is reported to the former top management of the bank. However, it is clear that such suspicion will not apply to the management of a legal entity whose accounts are blocked. This should also be noted in court.
In addition, it is necessary to prove the legal origin of the funds in the accounts, as well as to substantiate that the funds in the accounts have no signs of physical evidence and do not contain traces of illegal actions.
Now it is necessary to finally consolidate its position - to prove that the court blocked the accounts of a legal entity that is not related to the troubled bank. A related party is a natural person who by his official status, family ties or property status is connected with the activities and management of the bank and may receive certain material benefits in the process of performing the bank's functions. The list of related parties is contained in Art. 52 of the Law of Ukraine "On Banks and Banking".
The National Bank of Ukraine may determine whether a legal entity is related to a bank. He can do it himself or at the request of banks. Therefore, the materials of the complaint or petition should include information, first, from the NBU that the legal entity was not recognized as a person related to the bank; secondly, from a bank that did not notify the NBU of the grounds for recognizing the client as a person related to the bank.
Remember, if a court has blocked a legal entity's accounts, the best line of defense is a simple and accessible explanation for the court, supported by evidence. Do not leave chances to the investigator and prosecutor!
The article is published in the publication "Legal newspaper" from 12/5/2017