The favorite category of law enforcement cases is economic crimes, and the most popular type of pressure is through factual proceedings. In such cases, it is clear from the outset that the investigation is ongoing against a particular company or its manager, but there are no official claims. This is convenient for the investigation, because such cases are investigated for years and give the investigation the opportunity to periodically actively demonstrate to the owner / management that law enforcement officers have taken them firmly.
Calls for interrogations begin, letters arrive with requests to provide documents, confirm business relationships, call all employees, and even annoy contractors with constant calls and demands. However, no one is suspected of committing illegal acts. Why? Evidence is not enough to suspect, so it remains from time to time to remind yourself and keep the business in shape - they may come to "negotiate". But this situation does not suit business, as open criminal proceedings carry risks for normal operation.
In 2018, in the Criminal Procedure Code of Ukraine (hereinafter - CPC), the legislator introduced the concept of "third party, whose rights and legitimate interests are violated." These changes are aimed at protecting those who do not have any procedural status in criminal proceedings, but are informally actively involved in it. If you combine this status with the right of the court to set procedural deadlines for a party to criminal proceedings (Article 114 of the CPC), as well as the rule on reasonable time for procedural actions (Part 6 of Article 28 of the CPC), there is a tool to restrict the investigator in an endless investigation. .
The court may order the investigator to close the case or refer it to court within 1-2 months, thus limiting the length of the investigation and further undue interference in the company's affairs. Lawyers took up arms and began appealing to the court to set a specific time limit for the investigation. The results of the study of case law show that the courts are reluctant to oblige investigators to make a final decision within a specified period. However, it is already possible to formulate the criteria that the court pays attention to when making a decision.
What do the courts pay attention to
The analysis of judicial practice makes it possible to derive the criteria that the courts pay attention to in order to establish the term of the investigation:
- duration of criminal proceedings (recently registered or under investigation for several years);
- intensity and frequency of investigative / procedural actions involving a third party (number and duration of interrogations, presence of property seizures, facts of searches and seizure of documents);
- the impact of such actions on the economic activity of the enterprise (how the activity of the enterprise is limited, for how long, what negative consequences it creates);
- the content of the criminal proceedings (whether the case concerns a particular enterprise or its officials).
Now let's simulate the situation: if the actual criminal proceedings are investigated since 2016, the plot concerns a specific company, every few months the investigation summons managers and employees for interrogation, part of the property is arrested, property / documents are confiscated, but the investigation does not make a final decision. in court decisions and oblige the investigation to determine the prospects of the case. If the situation is the opposite and the third party is minimally involved in the criminal proceedings, the judges will not see any restriction of rights and will point to the absence of the status of "a third party whose rights and legitimate interests are limited".
Let's protect the rights of business in factual criminal proceedings
The practice on this issue is formed only at the level of the first instance, as such decisions are not appealed. The selection includes several relevant decisions that will help to understand the motives of the court based on the results of consideration of lawyers' motions to set deadlines for pre-trial investigation of factual criminal proceedings.
Pechersk District Court of Kyiv. Decision of 15.10.2020 in the case №757 / 43307/20-k. Criminal proceedings from 2017 under Art. 364, 191, 358, 233 of the Criminal Code of Ukraine
Defense position: According to the plot mentioned in the excerpt from the ERDR, the officials of the SOE, acting by prior agreement with the officials of the LLC, take steps to prepare for the illegal alienation of real estate on the balance of the utility, resulting in damage to the state budget in especially large amounts. . Therefore, the proceedings concern officials of a limited liability company. The investigation lasts more than 37 months. Real estate owned by a limited liability company was repeatedly seized, which were subsequently revoked by the decisions of the investigating judges as unfounded. An appropriate way to ensure the principles of criminal proceedings in terms of reasonable time is to establish such time by the investigating judge.
Court position: The court agreed with the arguments regarding the unjustified seizures of the real estate of the LLC in 2019-2020, and also came to the conclusion that the rights and interests of the LLC are systematically limited by seizing its real estate. An analysis of the rulings issued by the applicant, on the basis of which the property of the LLC was seized, shows that the requests of the pre-trial investigation authorities to seize the applicant's property are substantiated by evidence collected by the investigation in 2018. No person was suspected for more than 37 months. The court granted the request and set a time limit of 1 month for the procedural actions necessary and sufficient to complete the pre-trial investigation.
Supreme Anti-Corruption Court. Decision of 16.06.2020 in case №991 / 4646/20. Criminal proceedings from 2016 under Art. 191, 364 of the Criminal Code of Ukraine
Defense position: Since 2017, the investigation periodically conducts investigative / procedural actions in which the company is involved. In 2017, the court allowed the seizure of documents in the possession of LLC. In 2018, the seizure of property - grain and flour, which involved LLC. Also at the request of the USBU, information and documents of the LLC were requested, after which the director of the LLC was interrogated. In connection with the pre-trial investigation, the LLC has been under criminal influence and coercion by the pre-trial investigation body for a long time.
Court position: Not all temporary accesses were realized, the property of the LLC was not seized. The representative did not prove that the company is a person whose rights or legitimate interests are limited during the pre-trial investigation, and that the company has under Part 6 of Art. 28 of the CPC of Ukraine has the right to apply to an investigating judge with a request to conduct criminal proceedings (or certain procedural actions) in a shorter period than those provided by the Code.
Oktyabrsky District Court of Poltava. Resolution of 13.01.2021 in case №554 / 12061/20. Criminal proceedings from 2017 under Art. 364, 366, 212 of the Criminal Code of Ukraine
Defense position: The lawyer appealed to the court in the interests of the LLC with a petition, in which he asked to set the investigation period at 2 months. He noted that the investigation was carried out against the actions of officials of the company, the investigator demanded copies of documents on the relationship of the company with other companies for the entire period of activity. At the time of consideration of the petition, the pre-trial investigation is ongoing, no person has been notified of the suspicion, so reasonable deadlines for the pre-trial investigation have been violated.
The position of the investigation: The investigator of the TU DBR noted that the materials of the criminal proceedings contain more than 115 volumes, which contain a significant amount of evidence. It investigates complex criminal offenses committed with the use of more than 20 legal entities, 100 bank accounts, a significant number of forged documents. It is not possible to complete the pre-trial investigation.
Court position: The complainant did not prove by any evidence a violation of the reasonable time of the pre-trial investigation in the criminal proceedings, as well as a violation of the rights of the LLC as a result of investigative or procedural actions in the criminal proceedings.
Industrial District Court of Dnipropetrovsk. Decision of 10.10.2019 in case №202 / 5167/19. Criminal proceedings since 2013 under Art. 185, 190, 191, 194, 197-1, 356, 358 of the Criminal Code of Ukraine
Defense position: the lawyer refers to the duration of the pre-trial investigation. The final decision is not made within 7 years, investigative and procedural actions are not carried out, the investigation and the prosecutor's office do not respond to the request to complete the pre-trial investigation. In this regard, the lawyer asks to set a deadline for the procedural actions necessary and sufficient to complete the pre-trial investigation.
Court position: The law does not provide for the investigating judge to set a deadline for the investigator and prosecutor to carry out procedural actions necessary and sufficient to complete the pre-trial investigation, as the investigating judge is not empowered to oblige the pre-trial investigation body to notify the person of suspicion or close criminal proceedings.
In 2018, lawyers have an effective way to protect the rights of business in factual criminal proceedings that are investigated against specific companies or their officials. Lawyers are trying to force investigators to complete pre-trial investigations through the courts. The success of such an application depends on the evidence that will form a defense to confirm the violation of the rights and legitimate interests of the enterprise. If it proves unreasonable interference of the investigation and excessive restriction of rights, the court will oblige the investigator to complete the investigation within a specified period.
Dmitry Nikiforov, lawyer, partner of the law firm Bargen