In criminal proceedings involving economic crimes, investigators generally ask the court for permission to seize a significant amount of original documents. Sometimes this may adversely affect the business of the entity itself. In which cases can you appeal the court's decision to seize the original documents and how to properly substantiate the complaint? He told Dmytro Nikiforov, partner of Bargen Law Firm, lawyer.
- To gain access to documents held by a person, the investigator must apply to the court to obtain copies / originals. In criminal proceedings involving economic crimes, investigators generally ask the court for permission to seize a significant amount of originals.
Withdrawal, for example, statutory documents, documentation on work with contractors may adversely affect the activities of the entity. Returning such documents later will be problematic, and often requested documents are not even relevant to criminal proceedings.
In this case, the legislator provided for the possibility to appeal the court's decision on temporary access to things and documents (paragraph 10, part 1 of Article 309 of the CPC of Ukraine). The owner of the property has the right to appeal the court's decision on temporary access, if the court allowed the seizure of the original documents:
- Certifying the exercise of the right to conduct business.
- In the absence of which FOP or legal entity is deprived of the opportunity to carry out its activities.
Such documents include: 1) originals of constituent and registration documents, licenses, permits, 2) documents on real estate or vehicles, 3) documents confirming the qualifications of employees, orders appointing them to the position.
Therefore, granting the court permission to obtain only copies of documents does not create the right to appeal the court's decision. And in the appeal the owner of property in any case will have to prove that the court really interferes with the further normal work of the business entity.
Let's appeal the court's decision on temporary access to documents
For example - a few situations from case law. I will note that in addition to the already mentioned grounds, the courts pay attention to the (failure) of the investigators to prove the value of things and documents to establish the circumstances in the criminal proceedings; the possibility of using as evidence the information contained in things and documents; justification of the need to seize things (Part 2 of Article 160 of the CPC). Investigators often unreasonably ignore these requirements, which provides additional grounds for appeal.
There are very few cases of appeals. Probably, due to the courts of first instance giving access to copies of documents or due to the position of the owners to provide documents by default, so as not to "quarrel" with law enforcement. Therefore, these examples are from previous years.
Resolution of 24.07.2018 №757 / 19351/18-k
The Kyiv Court of Appeal upheld the property owner's appeal and overturned the first-instance court's decision to allow the seizure of documents..
The court of first instance gave permission to withdraw all documentation between the LLC and its contractor (contracts, annexes, specifications to them, tax invoices, bills of lading, invoice quality certificates, payment orders, promissory notes, acceptance certificates, etc.).
However, the owner of the property proved that the seizure of the originals would not help to prove any circumstances in the criminal proceedings, and the investigating judge did not substantiate the grounds, so he concluded that temporary access had been granted. The appeal was also accompanied by a court decision revoking the PPR, made on the basis of the conclusions set out in the inspection report, and the court concluded that access to documents with the possibility of seizing their originals was unfounded.
Another example from the Court of Appeal of Kyiv (decision of 26.04.2016 № 761/11790/16-k).
The court of first instance granted permission to seize primary documents of financial and economic activity, TTN, profitable invoices of LLCs, documents on customs clearance of equipment, etc.
During the review of the appeal, the court agreed that neither the investigating judge nor the investigators complied with the requirements of paragraph 1 part 3. Art. 132 of the Criminal Procedure Code of Ukraine. When filing a petition, the investigator must not only state the need to apply a measure to ensure criminal proceedings, but provide the court with appropriate arguments confirming such a need, to persuade the court to take the appropriate procedural decision.
Investigators do not specify how granting access to the original license to produce electricity is necessary to establish the circumstances of criminal offenses. And the investigating judge did not substantiate and did not state any grounds why he came to the conclusion that access to the original of the said license was granted.
There are also cases when the courts of appeal refuse to open proceedings or on the merits of the complaint because the property owner did not justify interference in his business or appealed the permission to seize copies, not the original documents (decision of the WACS from 17.08.2020 №991 / 6393 / 20; Court of Appeal of Kyiv dated 01.06.2016 №753 / 8344/16-k; dated 04.10.2018 № 752/12734/18).
Instead of a conclusion
It is realistic to appeal and cancel the decision to allow the investigator to seize the original documents. To do this, it is necessary to substantiate in the appeal excessive interference with the rights of the property owner, to prove the negative impact of the seizure of documents on the economic activity of the enterprise and the lack of relation of these documents to criminal proceedings.
Dmitry Nikiforov, lawyer, partner of the law firm Bargen