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In November 2018, Ukraine introduced a number of important novelties in the area of criminal law and process. Most of them may affect the Ukrainian business environment.
1. Establishment of the State Bureau of Investigations
On 27 November 2018, the State Bureau of Investigations (SBI) officially became operational. The new authority will investigate crimes committed by top officials (except those investigated by the National Anti-Corruption Bureau of Ukraine), as well as military criminal offences.
Now, together with the SBI, there are 6 authorities[1] responsible for pre-trial investigations and, as such, entitled to conduct investigative actions towards businesses. Previous practice suggests that any existing restrictions of competence of investigating authorities do not necessarily reduce pressure on businesses, as the authorities may come up with procedural excuses to "find" their competence almost within any case if needed.
Launch of the SBI has repealed several grounds for conducting pre-trial investigation in absentia (such grounds were meant to apply prior to the SBI launch).
2. Martial Law and Border Security
On 26 November 2018, the state of martial law was introduced in 10 border regions of Ukraine. This, inter alia, may result in simplification of the procedures to carry out searches, covert investigative actions, and temporary access to documents. Namely, in case an investigative judge fails to grant permission for the above measures within the established term, this can be done by a prosecutor.
On 10 November 2018, a special Law entered into force providing criminal punishment for illegal crossing, under certain additional conditions[2], of the state border of Ukraine beyond border inspection posts or without respective documents. For instance, entering Crimea and separate areas of Donetsk and Luhansk regions (ORDLO) from Russia may be regarded as the offence described above.
3. "Dawn raids stop 2"
On 4 November 2018, a new law entered into force, following last year's “Dawn raids stop 1” Law. Both laws aim to reduce abusive actions of law enforcements towards businesses.
Namely, persons who are not parties to the criminal investigations, but who become targets of investigative actions, for example, as searches (which is a typical status to be in for businesses), received a bundle of rights to help them discipline investigators and build up defense. Although not all of such rights could be enforced efficiently, the benefits for the businesses are evident. For your convenience, we have singled out the most important rights introduced by the above laws:
Rights in the course of and following investigative actions:
- Right to an attorney at any stage of the search (and right to ask to declare as inadmissible evidence anything discovered in the course of search, if an attorney was not allowed to participate);
- Right to video record the search (and ask to declare as inadmissible evidence anything that was discovered in the course of the search but was not formally recorded);
- Right to challenge failure to act (e.g. failure to return the property that was temporarily seized in the course of the search);
- Right to make steps to hold investigators and prosecutors personally liable for illegal actions (e.g., for damages during a search).
Speeding-up and closing proceedings:
- Right to challenge failure of investigative authority to respect reasonable term of investigation or request to conduct investigation or investigative actions within shorter period ;
- Right to request closure of "duplicate" proceedings[3];
- Right to request closure of proceeding if no one was served notice of suspicion within established term.
For further information please contact Asters Partner Sergiy Grebenyuk or Senior Associate Orest Stasiuk.
[1] SBI, NABU, GPO, SSU, Tax police, National police.
[2] Border crossing with the aim to harm state interest or by a person who is not allowed to enter the territory of Ukraine. The notion of «to harm state interest» is not defined in the Law.
[3] If another proceeding regarding the same actions was closed due to non-occurrence or absence of elements of criminal offence, decriminalization of the action or reaching tax compromise.
