During criminal investigations into economic and property crimes, investigators like to send requests to businesses asking for copies or originals of various documents. Sometimes, when such information is really needed to conduct an investigation, but much more often investigators just need to "shake" the business.
Today, when the law on the establishment of the Bureau of Economic Security was adopted, law enforcement officers are behaving very actively and trying to conduct more searches, interrogations, and send more documents. After all, it is quite possible that the current investigators of the police, SBU and tax have six months left to work, maybe a little more.
That is why now the business receives more requests from law enforcement than usual, and we need to figure out how to respond to them.
For example, in inquiries, investigators ask for the constituent documents of a legal entity, and to send several volumes of documents to confirm the relationship with certain companies (contracts, invoices, bills, etc.). Do you provide documents? How to choose the right solution so as not to endanger the business?
First, you need to understand whether such requests are mandatory. The investigator represents the prosecution and has the right to gather evidence. In their inquiries, investigators always refer to Article 93 of the Criminal Procedure Code of Ukraine, which deals with the possibility of requesting and obtaining documents from enterprises, institutions and organizations.
But investigators ignore the fact that the Criminal Procedure Code of Ukraine establishes the procedure for obtaining evidence, and they may receive such information. only after court permission to access the requested documents (see Chapter 15 of the CPC "Temporary access to things and documents"). Do investigators know this? Of course, they know. So why do they send such requests?
Investigators know that many companies will not go into details and will send all the requested information in order not to expose themselves to risks and not to "quarrel" with the investigator. And it is not important that the provided information will be used later for the next round of subpoenas for questioning of the company's managers and its counterparties. Therefore, immediately providing documents upon request means harming yourself and giving up without a fight.
What is the best thing to do if you receive a request from an investigator?
Best prepare a response stating that the company provides any documents only to enforce a court decision. Such an answer cannot be regarded as a refusal to provide documents, as it is only a matter of following the procedure established by law.
Also in the answer to the investigator it is possible to note that the requested information is a trade secret. In this case, the investigator has no right to request such documents and send a request without a court decision. But first I recommend to approve the provisions on confidential information and trade secrets at the company and include all the requested information.
Such an answer will force the investigator to go to court. And he will need to justify why he needs documents that contain trade secrets, why for a certain period, that he is going to confirm them, why he believes that the documents are in the company. And this is an additional expense of effort and time.
In any case, if the court gives permission to obtain documents, the company will be able to get more valuable information from the court decision, know the essence of the case, understand the risks to themselves in case of non-provision of documents.
Moreover, such a court decision can be appealed if the court has given permission to remove the original documents, the provision of which prevents economic activity. That is, in case of refusal to provide documents at the request of the investigator, additional options appear and you can plan your defense.
Investigators often forgot about our clients after such answers and did not come with court decisions on permission to receive documents. Therefore, even a simple answer-explanation to a request can deter you from trying to obtain information in a way not provided by law.