These days the Ukrainian media is full of news about the detention of officials and business owners, revisions of enterprises allegedly connected with corrupt officials, frozen foreign accounts, and the expected return of assets in the near future. The law enforcement system keeps an eye on ex-representatives of power and business, skillfully bringing them to criminal prosecution, and so-called “resonant” cases with a political flavor appear almost daily in the media.
In many cases, even in the absence of a direct connection between an official and business, law enforcement bodies often manipulate the current situation in our country to bring charges against businesses for financing terrorism. Moreover, a practice of amending the law specifically to strengthen cases against specific defendants is gaining momentum, such as recent legislation allowing litigation to proceed in absentia (with a sentence imposed in the defendants’ absence), or another law that entitles authorities to proceed with a “special confiscation,” requiring defendants to prove their ownership rights or lose their property. In addition, specialized bodies have been established to uncover and reveal corruption and bring the guilty to justice. Like law enforcement authorities, these specialized bodies are empowered to conduct searches and hold those accused of wrongdoing in detention, with proceedings broadcast on TV and covered in the leading Ukrainian media.
Unfortunately, such investigations often fall victim to a large number of procedural mistakes, causing many of them to burst like soap bubbles at the pre-trial investigation stage or at trial. Nonetheless, there are negative consequences for businesses subjected to searches, interrogations, and/or withdrawal of documents, because their ability to meet contractual obligations are temporarily blocked. Inevitably this harms a company’s reputation and damages its ability to do business going forward.
This situation has pushed the number of client inquiries to law firms up substantially. For example, in our firm the number of inquiries has doubled this year alone, and there has been an explosion of new criminal law practices among multi-service law firms and members of the Big Four. Generally, the involvement of such practices finishes at the pre-trial stage, as, because of the risk that the state will put pressure on other clients, such firms generally allow the cases to be taken over either by individual criminal defence attorneys or, more often, by attorneys who are highly-specialized and experienced in this area of the law.
These criminal cases often require complex systemic defense, or defence of a group of figures at one time, or defense in different regions of the country. For example, in our ongoing defense of former Ukrainian President Victor Yanukovych, we are acting in over ten parallel criminal cases simultaneously. In another example, in one of the first cases handled by the recently-created National Anti-Corruption Bureau of Ukraine, the “Oleksandr Onishchenko Gas Case,” we were required to defend several figures simultaneously with a team consisting of over 30 people, working in parallel on preparing documents, participating in court hearings, and thoroughly investigating numerous accusations. This sort of complicated work requires both significant expertise and real organization.
Skilled criminal attorneys in high-profile corruption cases are also required to make a correct determination of threats and to form an algorithm of defense. Our task is to protect the rights of our clients during interrogations, ensure the legality of searches, prevent the illegal seizure of property, ensure the return of property seized illegally, and, most important, make it clear to the state that the person they are investigating will not succumb to pressure and that the investigation must be terminated. If a criminal case is submitted to the court, we should ensure that all the rules are obeyed and highlight all weaknesses in the case against our clients which could eventually lead to closure of the case.
To conclude, the criminal defense practice has become strong enough to effectively resist law enforcement and state bodies. Until the rule of law and a constitutional state are established in Ukraine, a criminal practice will be among the truly necessary practices on the legal market.
By Olga Prosyanyuk, Managing Partner, Aver Lex Attorneys at Law
This Article was originally published in Issue 4.9 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
