Searches of the Nova Poshta company. What other effective ways to create problems to business exist today in Ukraine?
The biggest recent news was information about searches and pressure on large business by Office of Prosecutor General of Ukraine. Indeed, on March 16, Nova Pochta reported in the network that the Prosecutor General`s Office conducted simultaneous searches in the offices and warehouses of the company in such cities as Kyiv, Dnipro, Odessa, Lviv and Poltava. According to the press secretary of the PGO Larysa Sagan, the searches were carried out within the framework of criminal proceedings initiated on the fact of abuse of authority by officials of Nova Poshta LLC and other related enterprises on the grounds of criminal offenses under Part 2 of Art. 363 of the Criminal Code of Ukraine (abuse of power or official position) and part 3 of Art. 212 of the Criminal Code of Ukraine (tax evasion in a particularly large amount).
It is difficult to evaluate any conflict when you are outside and do not have documents that may point to the violations of law enforcement agencies. However, being based on our positive experience, our scheme works quite successfully: law enforcement agencies` officers easily create problems for any company without any reasonable ground and sometimes actually destroy business by opening criminal proceedings and carrying out investigative actions.
To date, the current legislation provides for a system an opportunity according to which everyone has the right to apply for a crime to the law enforcement agencies. At the same time, the current law obliges law enforcement agencies to include information contained in such a statement in the Unified Registry of Pre-Trial Investigations (ERPTI). In practice, quite often, instead of crimes allegations, reports from the SSU, employees of the State Fiscal Service (SFS), and other specific documents serve as the basis for information on the crime. Such reports may contain any information or facts witnessed by the above-mentioned persons. For example, in our practice there was even a "research on the fact of tax evasion", compiled by the staff of the SFS.
In our practice we faced with such a wide range of such "reports of crimes" that, probably, we can already write a book. In our practice there were criminal proceedings started on the basis of a report, the author of which allegedly witnessed how a bribe was given, a report on tax evasion or on poor-quality products.
Very often according to such reports authorities open criminal proceedings against an exact legal entity and its management board, and information about the crime, introduced into the URPTI, is consciously qualified under part 2 or part 3 of the relevant article of the Criminal Code of Ukraine. This qualification increases the severity of the crime and automatically grants law enforcement authorities the power to carry out unsolicited investigative actions against the officials of the targeted company.
The current legislation provides a lot of variations of tacit investigative actions, on which many businessmen have never even heard and do not know how they are implemented. Officers of law enforcement agencies apply a wide range of investigative actions, from audio, video monitoring and surveillance of the person to the search of housing. But these types of covert surveillance are not used so often. The most common ones are listening, recording of telephone conversations of a person or persons suspected of committing a crime. This kind of unspoken actions begins at an early stage of the case, and the right to conduct them is provided by the court. At the same time, such decisions of courts you will never find, because, according to the current legislation, they are not entered in the Register of Court Decisions. Therefore, the person, against whom such investigative actions are conducted, is hundred per cent likely to be unaware of them.
Also, the frequently used investigative action is the removal of information from the servers of mobile operators, the receipt of a calls list for a sufficiently large period of time and texts of SMS messages. Such investigative actions are conducted on the basis of a court order. They enter the Register with a significant delay and they do not contain personal information of involved persons. They may be found only if the company is aware of an open criminal proceeding or carries out continuous monitoring of information and, according to certain criteria, comes to the conclusion that such an action is carried out with respect to its officials. It is very difficult to find and recognize such information at the initial stage of the investigation. In 95% of cases the company finds out that criminal proceedings have been started against its relative or its officials, already when the search is conducted. The business also does not have the opportunity to find out about the fact of the search in advance, because decisions that are granted permission to conduct a search are not made public in the Unified Register of Court Decisions.
Based on our experience, in addition to the above-mentioned investigative actions applied to business, temporary access to things and documents, disclosure of banking secrets (access to banking information), interrogation and inspection are also popular. At the same time, conducting a search, law enforcement officers very often conduct other actions, which are not provided for by the Code of Criminal Procedure, i.e. the seizure of samples of goods for research etc. It is important to note that searches and inspections may be conducted many times, both for the company itself, and for its clients and related companies within the framework of the same criminal case.
Unfortunately, today we can state the fact that it is quite difficult for business in Ukraine to defend itself from illegal reports of a crime, and the withdrawal of the conflict into the public sphere is not a guarantee of its successful resolution in the shortest possible time. Business is forced to show ingenuity in order to prove its rightness and defend the right to conduct business in our country. To do this, it is necessary to apply the full range of available tools and PR is only one of them. The process of proving a negative affect can take months or even years. Acting within the legal framework is the only correct way to resolve conflicts of this level of complexity, since this is the basis for changes in the entire imperfect legal and state system. This principle should be adhered to by all market players, without exception. And only in this case the business climate will change to better.
And those people who are used to do business under the old rules will have no place in the new ecological environment. It will be unprofitable to create problems if there are no more willing to solve them outside the existing norms and rules. The system will be changed when all market players stand for each other, instead of playing the role of outside observers, indifferently watching their market companions or competitors’ destruction, forgetting that because tomorrow they may be in their place. However, today the principle of "voice in the wilderness", unfortunately, continues to work.
We do hope, that the case with the conflict of the Nova Poshta company will be an exception of the rules.
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