WHAT DOES THE BUSINESS SUFFER FROM?
News of the company
Nataliia Osadcha, Co-founder of S&P Agency, Investment Risk Advisor. Published specifically for Novoye Vremya.
The subject of asset-grabbing remains the relevant issue in Ukraine for the last twenty years.
This pathogenic «virus» does not disappear in any way and the area of its expansion does not become smaller. It only modifies, depending on economic and political realities. Now medium and small business more frequently faces with the seizure of assets or the unlawful seizure of property by third parties or one of the partners, while big companies suffer from more sophisticated things. And such «problems» are mainly created by the state bodies, and especially by law enforcement authorities.
Algorithm for creating problems for business or «how everything starts...» And everything starts trite: an operative worker of one of the law enforcement agencies, for example, writes a report that he has «heard» or «seen», or received operational data from «his agents» that someone gave somebody a bribe. Or, for example, that such and such a size of losses was caused to the state (the amount of losses is indicated in the same document).
Such a report is rapidly transferred to another agency that has the right to investigate this type of crime (even if it does not have such rights, the investigation will still begin). This is how a «fact» сase (a case regarding the discovery of legally significant facts) arises.
The opening of a «fact» case enables law enforcement agencies to conduct any investigative actions without any time limits. How much time are «fact» criminal cases investigated? The answer is - for years...
To illustrate what kind of investigative actions can be taken in relation to large business based on the results of the «fact» case opening, we will give the examples from our practice without the companies` names:
Non-public investigative actions against company`s officials and / or business owners. What does refer to non-public investigative actions? The current legislation provides a huge number of «variations» for the activities of law enforcement agencies. Starting from audio / video monitoring and monitoring of the adjudicated person, to the right of house investigation, or any other property, by secret penetration and using technical equipment.
But, these types of non-public investigative actions are rarely used. The most common is the bugging, recording and record-keeping of telephone conversations of a person or persons who are suspected of a crime commitment.
This kind of non-public actions begins at the earliest stage of the case, and the right to conduct them is given by the court. But you will never find such a court ruling. It happens for one simple reason: they are not a subject to be in the register of court decisions. Therefore, the person, whom such investigative actions concern, are 100% likely to be unaware of them. The "official" purpose of such actions is to obtain an evidence base; a "real" purpose is to get an "episode" for much more real criminal case.
Investigative actions, which are conducted in the process of the case investigation.
The most common investigative actions include the removal of information from the mobile operators` servers (obtaining a list of calls for a sufficiently long period of time and text messages).
Such investigative actions are also conducted on the basis of a court ruling. They are registered with a significant delay and are almost classified. They can be found only if the company knows about opened criminal proceedings, carries out constant monitoring of information, and on certain "discrepancies" comes to the conclusion that such an action is conducted in relation to its officials. Believe me, it's very difficult to recognize. The search and interrogation are very common investigative actions, which are conducted in every criminal case and are not limited to a number of times.
is possible only on the basis of the order of the investigating judge. The text of the decision is also not included in the unique register; the person against whom the search is going to be held is not called to the hearing. Therefore, the company finds out about the search only at the time it has already happened...
The inspection is not a common investigative action, but it is conducted according to the rules of the search on the basis of a court ruling, which the company also cannot find in the register and finds out only when the time comes.
What risks does such bullying bring?
"Factual" cases are investigated for years, and for years it is possible to conduct investigative actions against certain companies or officials, including secret ones. The terms of pre-trial investigation start only from the day of the report of suspicion. From this moment the maximum term of pre-trial investigation should not exceed 12 months.
How to fix the situation and is there a way out of it?
First, you need to understand and accept the risks for business that now exist in Ukraine. At that time, it is necessary to take a proactive position: to conduct constant monitoring and collect any information that may indicate the slightest symptoms of "unwinding the problem», concerning your business. If the fact of existence of the criminal case against the company and/or its officials is revealed, at least some investigative actions are carried out and it is necessary to be ready to react immediately. Prepare for a search, train your administrative staff and counterparties, develop and begin to implement a protection strategy. Is it possible to win this "battle" successfully and without significant losses? The answer is: it is possible, but you need to be well prepared for it.