At present, the most common lever of pressure on business by law enforcement agencies in our rule-of-law state is the search, with the subsequent seizure and seizure of property of legal entities. Usually, these criminal proceedings are factual, that is, information is entered in the Unified Register of Pre-trial Investigations under Articles 190, 191, 205, 212, 359 of the Criminal Code of Ukraine.
A visit of law enforcement authorities occurs suddenly and without warning, because usually their goal is bringing the client to a “friendly” conversation. As the case law testifies – the decisions are issued by the judges without criminal proceedings investigation and despite the fact that the search can be done for the same address several times in a row within a few days every month.
Lack of awareness of the enterprise’s employees in the criminal process leads to panic while such investigative actions are conducted as search, and as a result to a misunderstanding with law enforcement officials, who also sometimes come to search not alone, but accompanied by employees of a special unit. However, “the devil is not so black as he is painted”, representatives of law enforcement bodies play a relevant role using psychological pressure, intimidation. It is recommended that you do not react to these emotional travesties, you should calm down and focus on the legality of the investigation based on the results of which you will have seized the property, as it means the mandatory success of these actions for law enforcement agencies.
Usually the company has the status of a third person in criminal proceedings, and therefore, has the procedural rights as other members, in particular, their protection. If a contract concluded with a lawyer with a view to prevent arbitrary actions of law-enforcement bodies during carrying out a search within the legal entity’s area is missing, I recommend the following priority actions and to take mandatory information into account, as it is important and will help you in the future when fighting in court when fighting for the return of property will start:
- To define a “challenging” person, who will be in contact with the investigator and admit the court resolution on carrying out a search, because this person also participates in the seizure of items, preparing of comments on the report of the search and in signing it ;
- First, upon receipt of the decision it’s needed to check the validity of the definition (not more than one month); housing or other property, or part of a dwelling or other possession of a person that needs to be searched; a person who owns housing or other possession, and the person in whose actual possession it is; things, documents, or individuals for identification of which the search is carried out. It is desirable to rewrite the information (name, card number and its validity date), and inquire investigation order for security officers who are bound to participate in the investigation action, and it is usually missing, and therefore no legal basis for the latter to stay in the room;
- Verify, if the investigator is present at roll-call to deal with the list of persons who have been granted a permit to conduct a search, which is recorded in the court decision. In case it’s missing, one may safely say “goodbye”. An order for security officer (s) given out by the investigator to conduct a search is illegal, as evidenced by recent litigation;
- The resolution on the authorization of conducting a search needs to contain information about the prosecutor, the investigator who filed the petition for the search, specified provisions of the law under which decision is made ;
- The decision of the investigating judge regarding the authorization of the search of a dwelling or other possession of a person on the grounds stated in the request of the investigator, gives the right to enter into the dwelling or other possession of the person only once. For example, if law enforcement officers, while conducting a search, decide to take a break and go beyond the object being searched, then you have the right to allow them to enter into the object again;
- The search of a dwelling or other possession of a person is recorded by audio and video recording devices on a mandatory basis. It is important to carefully monitor and prevent the removal or viewing of things outside the camcorder’s view. We recommend making your own video capture;
- The most important thing is that everyone has the right to legal counsel at any stage of the search and/or while the search is being conducted;
- The search was conducted on the basis of the decision of the investigating judge of the local general court within the territorial jurisdiction of which the pre-trial investigation body is located;
- A copy of the resolution on authorization of conducting a search is necessarily given to the representative of the legal entity;
- A search or inspection of a dwelling or other possession of a person, a search of a person is carried out with the obligatory participation of at least two persons(coroner’s jury), regardless of the use of technical means of recording the relevant investigative action. However, you have the right to involve your own coroner’s jury in an unlimited number;
- Temporary withdrawal of electronic information systems or parts thereof, mobile terminals of communication systems used to study physical properties relevant to criminal proceedings shall be carried out only, if they are directly indicated in the court decision. If necessary, the investigator or the prosecutor shall copy the information contained in information (automated) systems, telecommunications systems, information and telecommunication systems, and their integral parts. Such information is copied when a specialist is involved;
- Copies of primary documents and accounting registers can be withdrawn from the company only by the relevant bodies’ decision, adopted within their powers under the law. Compiling of a register of seized documents, in the order established by the legislation, is binding;
- After the search is over, the second copy of the search report, together with the attached description of the seized documents and temporarily seized items, shall be handed over to the person who conducted the search, or, in case he is missing, to an adult member of his family or his representative; at the enterprise, institution or organization, the second copy of the report was not handed over to the manager or representative of the enterprise, institution or organization;
- Before signing the protocol, the participants of the procedural action are provided an opportunity to read the text of the protocol;
- The search protocol indicates:
- – all persons present while the procedural action goes on (surnames, names, patronymic, dates of birth, place of residence), including special units;
- – information that the persons involved in the procedural action have been informed in advance of the use of the technical means of capturing, the characteristics of the technical means of capturing and the carriers of information used to conduct the procedural action, the conditions and the procedure for their use;
- It is forbidden to conduct the search at night (from 22 p.m. to 6 a.m), except when the search is long and takes several days, “it was delayed until late”;
- You need to keep in mind that you have the right to provide written explanations that will be included in the search protocol;
- The annexes to the protocol shall be properly made, packaged and certified by the investigator, prosecutor, specialist, other persons who participated in manufacturing and / or removal of such annexes (specially made copies, samples of objects, things and documents, written explanations of the specialists involved in carrying out the relevant procedural action, verbatim transcript, audio-video recording of the procedural action, photographic tables, schemes, casts, carriers of computer information and other materials explaining the content of the protocol);
- You are bound to note when making the list of seized property by officials, namely the correctness of a property, and be sure to keep your list as it is not always possible to make out the handwriting, and it’s not excluded – the facts of not specifying some of the seized items.
- Only investigators, not operating executives, have the right to make a search report.
– Irene Gulaya, the lawyer of “Dynasty” Law Firm.
This list of actions is not exhaustive, the stated information is the most necessary at the moment when some people came to you for a “visit”.