Will there be a happy end for the ‘Mask- Shows’ era?

Kyiv Post Legal Quarterly - - Contents -

On Dec.1, at the meet­ing with the busi­ness com­mu­nity, the Pres­i­dent Petro Poroshenko pub­licly signed Law No. 2213-VIII. The high-pro­file event oc­curred un­der bright flashes of cam­eras and in a crowded hall. That was a mes­sage from the au­thor­i­ties to Ukrainian and for­eign in­vestors. The event also came as no sur­prise: for the pre­vi­ous two months, for­eign in­vestors had been openly shar­ing their ex­pe­ri­ence of searches and ha­rass­ment, the seizure of doc­u­ments and com­puter servers by law en­force­ment.

Only with­out the par­tic­i­pa­tion of me­dia. The Pros­e­cu­tor Gen­eral Yuriy Lut­senko had sev­eral times to go up to the ros­trum. Pop­u­lar tele­vi­sion com­edy shows in the 1990s dubbed such ha­rass­ment “Mask Shows.” But in­stead of jolly ac­tors, fully armed peo­ple in the bal­a­clavas would turn up at busi­nesses. This prac­tice con­tin­ued into the 21st cen­tury. The ca­dence of Poroshenko was no ex­cep­tion in this re­gard.

Fol­low­ing a meet­ing in Septem­ber, on Oct. 5, 2017 Pros­e­cu­tor Gen­eral Yuriy Lut­senko is­sued a let­ter on the Preven­tion of the Vi­o­la­tion of Busi­ness En­ti­ties’ Rights. On Nov. 10, the Prime Min­is­ter Volodymyr Groys­man reg­is­tered in par­lia­ment a cor­re­spond­ing bill, No. 7275. The ti­tle of the re­sult­ing law, No. 2213-VIII, which en­tered into force on Dec. 7, is lengthy, as is tra­di­tional for Ukrainian law­mak­ing, and reads in part: "On Amend­ments ... to En­sure Com­pli­ance with the Rights of Par­tic­i­pants in Crim­i­nal Pro­ceed­ings …" But the length of the law’s ti­tle also rep­re­sents recog­ni­tion by the state of the fact that the law en­force­ment agen­cies have for years sys­tem­at­i­cally vi­o­lated pri­vate rights with­out le­git­i­mate rea­sons. Un­der the new law, it is now en­vis­aged that searches con­ducted un­der a court war­rant must be recorded on video. All that is not recorded by the in­ves­ti­ga­tor is rec­og­nized as in­ad­mis­si­ble ev­i­dence. More­over, the de­fense team may in­de­pen­dently carry out its own record­ing.

En­try and searches of a premises in or­der to save peo­ple or prop­erty, or while in pur­suit of per­sons sus­pected of com­mit­ting a crime, may be con­ducted with­out a court war­rant. At the same time, the ev­i­dence col­lected shall be ad­mis­si­ble only if the judge has en­sured the court hear­ing is also recorded on video. How­ever, the use of video record­ing by courts will be­come manda­tory only from Jan. 1, 2019. A per­son, whose premises are be­ing searched, may en­gage an at­tor­ney-at-law which should be ad­mit­ted at any stage of the search. Vi­o­la­tion of this rule leads to in­ad­mis­si­bil­ity of ev­i­dences gath­ered by in­ves­ti­ga­tor. But the at­tor­ney-at-law will need to prove that they were not ad­mit­ted.

Now it is for­bid­den to tem­po­rar­ily with­draw elec­tronic in­for­ma­tion sys­tems, com­puter servers and mo­bile phones. How­ever, they can still be seized if they have to be ex­am­ined by ex­perts, have been used to com­mit a crime, or if the sys­tems and phones have in­for­ma­tion that can­not im­me­di­ately be ac­cessed so that it can be copied.

Also from March 15, 2018, ad­di­tional amend­ments will be in­tro­duced. The terms of pre-trial in­ves­ti­ga­tions with no sus­pects will be limited for 12 or 18 months de­pend­ing on the sever­ity of crimes. The ex­pi­ra­tion of the terms will be the ba­sis to close the crim­i­nal pro­ceed­ing. Nev­er­the­less, in­ves­ti­gat­ing judges were granted the right to ex­tend the dead­lines for an un­lim­ited num­ber of times. More­over, these changes will ap­ply only to crim­i­nal of­fenses reg­is­tered a er March 15.

We un­der­stand that ex­cep­tions to the rules may be both rea­son­able and nec­es­sary. How­ever, our own un­der­stand­ing of the norms by the in­ves­ti­gat­ing agen­cies o en opened op­por­tu­ni­ties to ma­nip­u­late the law. It de­pends en­tirely on who is di­rect­ing the na­tional security, de­fense and law en­force­ment agen­cies, and what tasks they are given to carry out.

Hence, a proper ap­proach to solve prob­lems is not to end­lessly make im­prove­ments to codes.

Busi­ness ex­pects an im­prove­ment in the in­vest­ment cli­mate. The govern­ment wants gross do­mes­tic prod­uct to grow. The pres­i­dent and the prime min­is­ter have sent a mes­sage, but they will also have to show some po­lit­i­cal will. That means giv­ing up us­ing law en­force­ment agen­cies in the au­thor­i­ties’ own in­ter­ests, and mak­ing fur­ther re­forms in the law- en­force­ment sphere.

Volodymyr Vashchenko at­tor­ney-at-law, man­ag­ing part­ner at VB PART­NERS

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