To the President of Ukraine

Mr. Zelenskyy V.O.

Chairman of the Verkhovna Rada of Ukraine

Mr. Stefanchuk R.O.

Chairman of the Verkhovna Rada Committee on Law Enforcement

Mr. Ionushas S.K.

Chairman of the Committee on Finance of the Verkhovna Rada of Ukraine,

Taxation and Customs Policy

Mr. Dmytro Hetmantsev

First Deputy Chairman of the Committee of the Verkhovna Rada of Ukraine

on Finance, Taxation and Customs Policy

Mr. Zhelezniak Y.I.

People’s Deputy of the Verkhovna Rada of Ukraine

Chairman of the Investor Protection Commission

Ms. Hanna Yanchenko

Prosecutor General of Ukraine
Mr. Kostin A.E.

 

Joint letter of Ukrainian business

The Verkhovna Rada of Ukraine is currently considering the Draft Law of Ukraine No. 10440 dated 29.01.2024 “On Amendments to the Criminal Procedure Code of Ukraine and Other Legislative Acts on Improving the Work of the Bureau of Economic Security of Ukraine”.

Among the forecasts for the adoption and implementation of this draft law are the improvement of the legal framework for the BES, ensuring guarantees of the rights of legal entities during the execution of investigating judge and court decisions on temporary access to things and documents and on the search of other property of a business entity, etc.

Experts of business associations, not being indifferent and expecting real progress in amending the current legislation to guarantee the protection of business from pressure from law enforcement and unlawful interference in business activities, analyzed this draft law in detail and prepared a number of proposals that should be taken into account when finalizing it.

Given the difficult situation when business confidence in law enforcement agencies needs to be restored, it is extremely important to amend the CPC of Ukraine to help restore business confidence in law enforcement agencies. Moreover, this step will be effective in conjunction with the reboot of the Bureau of Economic Security (draft law No. 10439 with business amendments is being prepared for the second reading).

The changes developed by experts from leading business associations are urgently needed and should be implemented and implemented in the near future:

• Provide that in criminal offenses under the jurisdiction of the National Police and the BES, no assignment may be given to operatives of the SBU.
• Any actions or omissions, as well as decisions of the investigator, detective, or prosecutor made in any procedural action may be appealed to the investigating judge.
• Provide that upon receipt of a court decision requiring the return of temporarily seized property, the prosecutor shall be obliged to instruct the investigator to immediately return such property within 24 hours and 72 hours for the return of such property by the body that seized it.
• Introduce a validity period for the investigating judge’s decision to seize property. After 60 days, if the seizure is imposed on the property of a third party (individual or legal entity), and if such person, founder or employee of such legal entity has not acquired the status of a suspect, the court must cancel the seizure at the request of such person, unless the prosecutor proves the need for further seizure of such property.
• To introduce the concept of critical property (means of labor that are part of economic activity) and to establish exclusive grounds for its seizure
• Provide that failure to notify the property owner of the consideration of a motion to seize property is an obstacle to the consideration of such a motion.
• To authorize investigators to cancel arrests by closing criminal proceedings, with the consent of the prosecutor.
• Establish that the maximum bail amount cannot exceed the minimum amount of incriminated damages confirmed by an expert opinion, and remove exceptional cases for setting bail in excess of the amounts established by the Code.
• To entrust investigating judges with the obligation to verify that the pre-trial investigation body complies with the requirements of jurisdiction when considering the submitted motions.
• Provide that violation of the jurisdiction of criminal proceedings, illegal change of jurisdiction of criminal proceedings may be appealed to a higher-level prosecutor, and the refusal to satisfy such a complaint may be appealed to the court.
• Provide that the person whose home was searched should have the right to familiarize themselves with the materials used by the prosecutor or investigator to substantiate the arguments of the motion. The right to cancel the search warrant should be granted. The evidence obtained under the canceled decision will not be considered evidence.
• Prohibit the seizure of items and documents that are not specified in the investigating judge’s ruling.
• Establish specific terms of pre-trial investigation and the procedure for their extension in factual criminal proceedings, except for crimes under the jurisdiction of the NABU and the SBI (for them, the current version of the CPC remains). It is also proposed to regulate the issue of time limits in criminal proceedings that occurred during martial law (30 months for investigation + all the time remaining before martial law can be used by adding 30 months) with the right to extend such terms for investigating judges.
• Introduce a ban on the prosecution to conduct examinations in the bodies subordinate to such a party in order to prevent monopoly on examinations and its abuse. Such a monopoly leads to the fact that a law enforcement agency (e.g., the SSU, the National Police) initiates criminal proceedings and appoints and conducts examinations in its own NDEQC of the Ministry of Internal Affairs or the SSU’s IFTE to confirm its position as the prosecution. This monopoly leads to bias in criminal proceedings.
• Provide that the investigating judge or court may issue a separate ruling recognizing the violation of the terms of return of the seized property and send it to the disciplinary body or to the relevant authorities to decide on the registration of criminal proceedings.

We emphasize that without making changes that will make the BES a single body for investigating economic crimes and other fundamental changes to the CPC of Ukraine, as outlined in the appeal, it is impossible to solve the problem of pressure on business.

We call on MPs to discuss the proposals developed by the business and finalize Draft Law #10440 for the first reading, including the provisions proposed by business representatives.

 

Sincerely yours

Business associations:

Chamber of Commerce and Industry

Association of Taxpayers of Ukraine

European Business Association

Association of Veteran Entrepreneurs

All-Ukrainian Agrarian Council

Association of private employers

Ukrainian Bar Association

Business community Board

CLUB100 business community

Oil and Gas Association of Ukraine

Kharkiv IT Cluster

Association of flour millers of Ukraine

All-Ukrainian professional association of entrepreneurs

Association of Software Ukraine

Association Ukrkondprom

Ukrainian club of agrarian business

Ukrainian Federation of Security Industry