BUSINESS PRESSURE RELIEF LAW - DRAFT
TO: U.S.-Ukraine Business Council (USUBC)
FROM: Algirdas Semeta, Business Ombudsman
Daniel Bilak, Director, UkraineInvest
Please distribute among your members and provide us with comments
We would appreciate your members public support of the draft Kyiv, Ukraine, Wed, Nov 7, 2017
Dear friends and colleagues!
The Business Ombudsman Council and UkraineInvest are pleased to inform you that earlier today the Cabinet of Ministers of Ukraine [CMU] approved the Draft Law “On Introducing Amendments to Certain Legislative Acts Aimed at Preventing Pressure of Law Enforcement Bodies on Business” (the “draft Business Pressure Relief Law”). This bill is designed to strengthen the protection of the rights of businesses, prevent abusive practices on the part of law enforcement bodies during the course of investigations, and to introduce liability for any unlawful behaviour on the part of investigating officers.
The initiative of Prime Minister Volodymyr Groysman, the draft law was presented to the Cabinet today by Minister of Justice Pavlo Petrenko, and was unanimously adopted by the Cabinet of Ministers. The draft Business Pressure Relief Law will be shortly posted on the CMU web-site for comment and will then be sent to the Verkhovna Rada for adoption, hopefully still in this session.
The draft Business Pressure Relief Law implements selected recommendations set out in the Systemic Report of the Business Ombudsman Council “Abuse of Powers by the Law enforcement Authorities in Their Relations with Business”, which was published in January 2016, and was developed in close cooperation between the Cabinet of Ministers of Ukraine, the Ministry of Justice of Ukraine, the Business Ombudsman Council and UkraineInvest, the government’s investment promotion office.
The reforms reflect radical changes to current practices, including:
1. Searches will now be subject to mandatory video recordings; those actions taken andor evidence collected that were not recorded by video will be inadmissible as evidence in subsequent court proceedings; video recordings will now constitute an integral part of the search protocol (amendments introduced to Articles 27, 104 and 107 of the Criminal Procedural Code of Ukraine (the “CPCU”));
2. Adjudication of matters by an investigating judge will also be subject to mandatory video recording (amendments introduced to Articles 27 and 107 of the CPCU); hence, evidence collected during a search authorized by an investigating judge that was not video recorded will not be admissible as evidence in subsequent court proceedings (amendments introduced to Article 87 of the CPCU);
3. Law enforcement officers, in general, will be prohibited from seizing computer hardware and must make copies of any required data without seizing the hardware where it is stored (amendments introduced to Article 168 of the CPCU). Further, these copies must be treated by a court as if they were originals of the documents (amendments introduced to Article 99 of the CPCU). Seizure of computer hardware is, however, allowed only when (i) it is necessary for conducting an expert review; (ii) it was acquired as a result of committing a crime; (iii) it constitutes the instrument for a committed crime; or (iv) access thereto is restricted by the owner or requires an overriding password.
4. A person in whose premises the search is being carried out will be entitled to the assistance of an advocate at any stage of a search (amendments introduced to Article 236 of the CPCU). If an advocate is barred access by the law enforcement body carrying out the search, any evidence collected will not be admissible in court (amendments introduced to Article 87 of the CPCU);
5. It will be prohibited to re-open criminal proceedings on the basis of facts identical to those that were the subject of an earlier criminal proceeding that has already been closed (amendments introduced to Article 284 of the CPCU);
6. Anyone commencing criminal proceedings against the activities of the investigating authority will be entitled to receive an extract from the Unified Registry of the Pre-trial Investigations within 24 hoursafter such an application is made, certifying the fact of the submission of the claim (amendments introduced to Articles 60, 214 of the CPCU);
7. Persons whose rights are restricted during the course of a pre-trial investigation, but are not granted any procedural status (such as a chief accountant, financial director, members of the management or supervisory board) will be entitled to submit a protest with the prosecutor or investigating judge to seek compliance with the reasonable time principle on the part of an investigator or a prosecutor (amendments introduced to Articles 28, 303 and 308 of the CPCU);
8. When seeking authorization from an investigating judge for temporary access to materials and documents, law enforcement officials will be required to substantiate the necessity to seize not only originals, but also copies of the documents (amendments introduced to Articles 160, 164 and 165 of the CPCU);
9. The Cabinet of Ministers of Ukraine will establish a commission to receive complaints and to issue recommendations to the heads of law enforcement agencies in respect of the liability of officers who appear to have abused their authority during the conduct of the investigation of a business. (amendments introduced to Article 15 of the Law of Ukraine “On Democratic Civil Control Over Military Organization and Law Enforcement Authorities of the State”). In addition to any designated state authorities, representatives of the Business Ombudsman Council, business associations and specialized NGOs will be invited to be represented on the commission.
We would appreciate if you could disseminate this news among your members and to provide us with any comments your membership may have to the draft law. We would very much appreciate your and your members public support of the draft Business Pressure Relief Law to ensure its successful and prompt consideration Draft Law in Verkhovna Rada.
Algirdas Semeta, Business Ombudsman
Daniel Bilak, Director, UkraineInvest