Business Crime 2018 | UKRAINE |Chapter author Volodymyr BOGATYR

ICLG

The International Comparative Legal Guide to:

Business Crime 2018 8th Edition A practical cross-border insight into business crime

Published by Global Legal Group, in association with CDR, with contributions from: Allen & Gledhill LLP Anagnostopoulos Criminal Law & Litigation Baker & Partners BCL Solicitors LLP BOGATYR & PARTNERS Bonifassi Avocats Brain Trust International Law Firm Clayton Utz De Pedraza Abogados, S.L.P. Debevoise & Plimpton LLP Gürlich & Co. Haldanes Homburger Hrle Attorneys Ivanyan & Partners Josh and Mak International Kachwaha and Partners Lampert & Partner Attorneys at Law Ltd.

Linklaters LLP Maples and Calder Matheson MJM Limited Moroglu Arseven Nishimura & Asahi Rogério Alves & Associados, Sociedade de Advogados, RL Schulte Roth & Zabel LLP Skadden, Arps, Slate, Meagher & Flom LLP Sołtysiński Kawecki & Szlęzak stetter Rechtsanwälte Studio Legale Pisano USCOV | Attorneys at Law Van Oosten Advocaten Vilardi Advogados Associados

The International Comparative Legal Guide to: Business Crime 2018 General Chapters: 1 2 Contributing Editors Ryan D. Junck & Keith Krakaur, Skadden, Arps, Slate, Meagher & Flom LLP Sales Director Florjan Osmani Account Director Oliver Smith

3

The Next Big Thing: ICOs and Cryptocurrencies – Is There a Coming Wave of Enforcement Activity? – Ryan D. Junck & Stuart D. Levi, Skadden, Arps, Slate, Meagher & Flom LLP

1

Extraterritorial Regulatory and Criminal Enforcement – Barry A. Bohrer & Adam S. Hoffinger, Schulte Roth & Zabel LLP

5

The Use of Foreign Compelled Testimony in Cross-Border Investigations – The Impact of the Second Circuit’s Allen Decision – Sean Hecker & Karolos Seeger, Debevoise & Plimpton LLP

9

Country Question and Answer Chapters: 4

Australia

Clayton Utz: Tobin Meagher & Greg Williams

17

5

Belgium

Linklaters LLP: Stefaan Loosveld & Gert-Jan Hendrix

26

6

Bermuda

MJM Limited: Jennifer Haworth

34

Sales Support Manager Toni Hayward

7

Editor Sam Friend

Brazil

Vilardi Advogados Associados: Celso Sanchez Vilardi & Luciano Quintanilha de Almeida

42

8

British Virgin Islands

Maples and Calder: Arabella di Iorio & David Welford

50

9

Cayman Islands

Maples and Calder: Martin Livingston & Adam Huckle

58

10 Czech Republic

Gürlich & Co.: Richard Gürlich & Kamila Janoušková

68

11 England & Wales

BCL Solicitors LLP: Shaul Brazil & Anoushka Warlow

75

12 France

Bonifassi Avocats: Stéphane Bonifassi

84

13 Germany

stetter Rechtsanwälte: Dr. Sabine Stetter & Stephanie Kamp

95

14 Greece

Anagnostopoulos Criminal Law & Litigation: Ilias G. Anagnostopoulos & Jerina (Gerasimoula) Zapanti

105

15 Hong Kong

Haldanes: Felix Ng & Emily Cheung

114

16 India

Kachwaha and Partners: Ashok Sagar & Sumeet Kachwaha

124

17 Ireland

Matheson: Carina Lawlor

135

18 Italy

Studio Legale Pisano: Roberto Pisano

147

19 Japan

Nishimura & Asahi: Yoshinori Ono & Norimitsu Yamamoto

158

20 Jersey

Baker & Partners: Stephen Baker & William Redgrave

171

21 Liechtenstein

Lampert & Partner Attorneys at Law Ltd.: Siegbert Lampert

179

22 Netherlands

Van Oosten Advocaten: S.G.C. (Sanne) Bocxe & B.E.J. (Dinya) Torny

187

23 Pakistan

Josh and Mak International: Aemen Zulfikar Maluka & Pir Abdul Wahid

195

24 Poland

Sołtysiński Kawecki & Szlęzak: Tomasz Konopka

201

25 Portugal

Rogério Alves & Associados, Sociedade de Advogados, RL: Rogério Alves

211

26 Romania

USCOV | Attorneys at Law: Adrian Uscov & Silvia Uscov

222

27 Russia

Ivanyan & Partners: Vasily Torkanovskiy

230

28 Serbia

Hrle Attorneys: Vladimir Hrle

242

29 Singapore

Allen & Gledhill LLP: Jason Chan Tai-Hui & Evangeline Oh JiaLing

249

30 Spain

De Pedraza Abogados, S.L.P.: Mar de Pedraza & Paula Martínez-Barros

256

31 Switzerland

Homburger: Flavio Romerio & Roman Richers

272

32 Taiwan

Brain Trust International Law Firm: Hung Ou Yang & Hung-Wen Chiu

283

33 Turkey

Moroglu Arseven: Orçun Çetinkaya & Burak Baydar

291

34 Ukraine

BOGATYR & PARTNERS: Volodymyr Bogatyr

300

35 USA

Skadden, Arps, Slate, Meagher & Flom LLP: Ryan D. Junck & Gary DiBianco

307

Senior Editors Suzie Levy, Rachel Williams Chief Operating Officer Dror Levy Group Consulting Editor Alan Falach Publisher Rory Smith Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: info@glgroup.co.uk URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design GLG Cover Image Source iStockphoto Printed by Ashford Colour Press Ltd September 2017 Copyright © 2017 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-911367-71-0 ISSN 2043-9199 Strategic Partners

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.

Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.

This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

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Chapter 34

Ukraine BOGATYR & PARTNERS

Volodymyr Bogatyr

1 General Criminal Law Enforcement 1.1

What authorities can prosecute business crimes, and are there different enforcement authorities at the national and regional levels?

The Ukrainian authorities which can prosecute business crimes are the general prosecutor’s office and departments of the prosecutor’s office in different regions. However, only the prosecutor’s office has the authority to charge an individual or entity with a crime; meanwhile, for investigation purposes, all information and investigation provided by different law enforcement authorities like the police, tax police, Security Service and the National AntiCorruption Bureau can be used.

1.2

If there is more than one set of enforcement agencies, how are decisions made regarding the body which will investigate and prosecute a matter?

Currently, our law enforcement office is under reform and this, in fact, creates problems such as a lack of power to investigate different kinds of crime or difficulties due to different authorities having the same power to investigate the same criminal activity. General principles are explained in the Criminal Procedural Code of Ukraine, and the prosecutor’s office defines jurisdiction through a special procedural heading. In the case of disagreement, the defendant can challenge the jurisdiction through a special investigating judge.

1.3

Is there any civil or administrative enforcement against business crimes? If so, what agencies enforce the laws civilly and which crimes do they combat?

Certainly, there is civil and administrative enforcement in Ukraine.

Administrative enforcement is usually related to cases such as infringement of taxes and different administrative procedures, and business cases related to government regulation of such business activity. Civil and commercial litigation are common practice for solving commercial disputes between companies. However, it has to be noted that there are differences from other countries in the qualification of fraud for Ukraine, which can only be criminal in accordance with Ukrainian law.

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2 Organisation of the Courts 2.1

How are the criminal courts in your jurisdiction structured? Are there specialised criminal courts for particular crimes?

Specialised courts for particular crimes are absent in Ukraine.

Ukrainian courts are structured in the following order of succession: local courts; the Court of Appeal of Ukraine; the Court of Cassation of Ukraine; highest specialised courts; and the Supreme Court of Ukraine. The Civil and Criminal Court has the jurisdiction to review criminal cases. It should be noted that a specialised criminal and civil court exists; however, it can review all crimes.

2.2

Is there a right to a jury in business crime trials?

Such practice is usually absent in Ukraine. It was recently introduced exclusively for crimes consisting of intended murder, where a lifelong sentence can be imposed.

3 Particular Statutes and Crimes 3.1

Please describe any statutes that are commonly used in your jurisdiction to prosecute business crimes, including the elements of the crimes and the requisite mental state of the accused:

o

Securities fraud

Adding an unauthorised person in the documents submitted for registration of securities or false information if it caused great material damage for the investor in securities leads to a fine or deprivation of the right to occupy certain positions or engage in certain activities for up to three years. Damage shall be considered significant if it is 20 times more than the non-taxable minimum income. o

Accounting fraud

Amendment of documents or accounting registers or making statements to a financial institution which are knowingly false, consisting of incomplete information on transactions, obligations, property agencies, mandatory revocation of a financial institution or declaring it insolvent leads to a fine or imprisonment for up to four years, with disqualification to hold certain positions or engage in certain activities for up to 10 years.

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Intentional unlawful disclosure, transfer of or access to insider information, as well as providing information on the use of such recommendations to the acquisition or disposal of securities or derivatives – if it led the persons who committed these acts or third parties to unjustified profits in a significant amount, or to avoiding stock market participation or to third parties having significant damage or if it caused substantial harm to legally protected rights, freedoms and interests of individual citizens, or state and public interests, or the interests of legal entities – leads to a fine with or without disqualification to hold certain positions or engage in certain activities for up to three years. o

Embezzlement

The appropriation or embezzlement of another’s property that has been entrusted to a person or was in his jurisdiction is punishable by correctional labour for up to two years, or imprisonment for up to four years, or imprisonment for up to four years with disqualification to hold certain positions or engage in certain activities for up to three years. o

Bribery of government officials

The offer or promise to an official legal entity, regardless of the legal form, which would lead to a third party’s undue advantage, as well as providing such benefit or its request to the commission referred to an official action or inaction of using the powers granted them in the interests of the person who offers, promises or gives such benefit or that of a third person is punishable by a fine or community service for a period of 100 to 200 hours, or imprisonment for up to two years. o

Criminal anti-competition

This is regulated by a specialised law of Ukraine regarding protection from unfair competition.

of the party by a local party candidate in the elections is punishable by a fine or correctional labour for up to two years, or imprisonment for the same period, with disqualification to hold certain positions or engage in certain activities for up to three years. o

Market manipulation in connection with the sale of derivatives

Such activity is managed by the antimonopoly committee. o

Money laundering or wire fraud

Making a financial transaction or a transaction with funds or other property obtained as a result of committing a socially dangerous illicit act that preceded the legalisation (laundering), and actions aimed at concealing or disguising the illicit origin of such funds or other property, rights to such funds or property, source of origin, location, movement, changing their shape (conversion), as well as the acquisition, possession or use of money or other property derived from the commission of a socially dangerous illicit act that preceded the legalisation (laundering) leads to imprisonment for a term of three to six years, with disqualification to hold certain positions or engage in certain activities for up to two years with confiscation of property. o

Any other crime of particular interest in your jurisdiction

Opening or use outside of Ukraine of currency accounts of individuals committed by a citizen of Ukraine, permanently residing in its territory, as well as foreign currency accounts of entities operating in the Ukraine committed by a company, institution or organisation or on behalf of another person, and also any such actions by a person who carries on business activity without a legal entity leads to a fine or correctional labour for up to two years, or imprisonment for a term of two to four years, with the forfeiture of currency values that are at the above accounts.

This law defines the legal basis of protection of entities and consumers against unfair competition. The law is aimed at establishing, developing and providing trade and other fair traditions in competition when performing economic activity in market conditions.

3.2

o

The concept of crime is defined as not only the completed crime, but the preparation for it, as socially dangerous acts. However, preparation for a minor offence does not entail criminal liability. The law is known to exclude responsibility for a completed crime which, although formally has signs of an offence under criminal law, due to insignificance does not constitute a public danger. In particular, an attempt that is not a public danger (e.g., attempted destruction or damage to property that has no value) does not constitute a crime.

Cartels and other competition offences

These are regulated by the antimonopoly committee and the law of Ukraine regarding the protection of economic competition. They are not regarded as criminal offences and may lead to a fine or to a forced division of entitled property. They are usually qualified as civil and administrative offences. o

Tax crimes

Wilful evasion of taxes and duties (mandatory payments) in the system of taxation imposed in accordance with the law committed by a company, institution or organisation, regardless of ownership or a person engaged in entrepreneurial activities without establishing legal person or any other person who is obliged to pay if those actions resulted in actual underpayment into budgets or state purpose funds in significant amounts, leads to a fine or deprivation of the right to occupy certain positions or engage in certain activities for up to three years. o

Government-contracting fraud

There is no specific statute for such crime; therefore, it usually qualifies as the same as embezzlement. o

Environmental crimes

The Criminal Procedural Code of Ukraine chapter VIII describes crimes against the environment. o

Campaign-finance/election law

Presentation of deliberately false information in a report of the party considering property, income, expenses and financial obligations or in the financial statements on the receipt and use of election funds

Ukraine

o

Ukraine

Is there liability for inchoate crimes in your jurisdiction? Can a person be liable for attempting to commit a crime, whether or not the attempted crime is completed?

The procedural rule states that the only reason a person could have criminal responsibility is if that person has committed a socially dangerous act which appears to constitute an offence under the Criminal Procedural Code. The same grounds for criminal liability exist for the preparation of a crime and attempted crime. In other words, the basis of responsibility for the preparation of a crime and the attempted crime can only be applied in the individual act of a crime. Preparation for a crime and attempted crime are both considered a crime of unfinished composition, and therefore the composition or preparation of a crime constitutes an attempted crime.

4 Corporate Criminal Liability 4.1

Is there entity liability for criminal offences? If so, under what circumstances will an employee’s conduct be imputed to the entity?

An entity can be liable for criminal offences regarding its economic activity, such as in the list of offences provided above. The conduct

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of the employee is taken into account in most cases, as in where the actions of the employee have led to the violation of the law by the entity. However, in most cases, the employee is not liable for the crime, while the entity is.

4.2

Ukraine 6 Initiation of Investigations 6.1

Is there personal liability for managers, officers, and directors if the entity becomes liable for a crime?

Under what circumstances?

Do enforcement agencies have jurisdiction to enforce their authority outside your jurisdiction’s territory for certain business crimes? If so, which laws can be enforced extraterritorially and what are the jurisdictional grounds that allow such enforcement? How frequently do enforcement agencies rely on extraterritorial jurisdiction to prosecute business crimes?

It is only the entity which is liable for crimes committed by employed officials. There are provisions for legal liability; however, in practice, they are rarely used.

Such practice is absent in Ukraine; the enforcement agencies are to investigate crimes committed only in their appointed region.

4.3

6.2

Where there is entity liability and personal liability, do the authorities have a policy or preference as to when to pursue an entity, when to pursue an individual, or both?

This is reviewed individually for every case. See question 4.2.

4.4

In a merger or acquisition context, can successor liability apply to the successor entity? When does successor liability apply?

Issues of succession regarding the specific rights and obligations of a legal entity when it is reorganised are resolved in accordance with the transfer act and separation balance. When merging, joining and transforming a legal entity, a transfer act is drawn up, and when a legal entity is reorganised by division and allocation, a distributive balance is formed.

5 Statutes of Limitations 5.1

How are enforcement-limitations periods calculated, and when does a limitations period begin running?

The limitations period depends on the severity of the crime. It begins running from the moment of committing the crime or from the moment of detecting the crime if the first is unknown.

5.2

Can crimes occurring outside the limitations period be prosecuted if they are part of a pattern or practice, or ongoing conspiracy?

Yes, in cases where the crime is a repeating practice. If a number of similar crimes were committed, the limitations period begins running from the known date of the last crime.

5.3

Can the limitations period be tolled? If so, how?

Yes, in the cases where the crime was detected after the limitations period has already passed. However, this does not apply to cases where the crime was committed against peace and humanity.

How are investigations initiated? Are there any rules or guidelines governing the government’s initiation of any investigation? If so, please describe them.

The investigator and the prosecutor must (but no later than 24 hours after application, notification of committing a criminal offence or after self-identifying it from any sources of circumstances that may indicate criminal offence) submit relevant information to the Unified Register of pre-trial investigation immediately. The investigator, who will carry out a pre-trial investigation, should be determined by the head of the pre-trial investigation.

Pre-trial investigation begins after entering data in the Unified Register of pre-trial investigations. Regulations of the Unified Register of pre-trial investigations and the procedure for forming and maintaining the investigation is approved by Prosecutor General of Ukraine in coordination with the Ministry of Internal Affairs of Ukraine, the Security Service of Ukraine, and the National AntiCorruption Bureau of Ukraine, as well as the body that monitors compliance with tax laws.

6.3

Do the criminal authorities in your jurisdiction have formal and/or informal mechanisms for cooperating with foreign enforcement authorities? Do they cooperate with foreign enforcement authorities?

International cooperation in criminal proceedings lies in taking the necessary measures to provide international legal assistance through the exchange of documents, execution of certain proceedings, extradition of persons who have committed criminal offences, temporary transfer of persons taking over the criminal prosecution, transfer of sentenced persons and execution of judgments.

International treaties of Ukraine may provide different measures than those described in the Criminal Procedural Code, i.e. forms of cooperation in the criminal proceedings. The practice of cooperating with foreign authorities is rather undeveloped at present, since Ukrainian authorities, in practice, are reluctant to do so and have inadequate training to do so.

7 Procedures for Gathering Information from a Company 7.1

What powers does the government have generally to gather information when investigating business crimes?

The government acts through covert investigative actions and has the power to collect information from personal computers, data storage devices, telephones and other devices through the ruling of the court.

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7.2

Under what circumstances can the government demand that a company under investigation produce documents to the government, and under what circumstances can the government raid a company under investigation and seize documents?

The government can demand a company to produce documents only through a court ruling if the judge decides such measures to be necessary.

7.3

Are there any protections against production or seizure that the company can assert for any types of documents? For example, does your jurisdiction recognise any privileges protecting documents prepared by in-house attorneys or external counsel, or corporate communications with in-house attorneys or external counsel? Do the labour laws in your jurisdiction protect personal documents of employees, even if located in company files?

As a measure of protection, the company can transfer these documents to a law firm for pre-study purposes. No one has the right to seize them, because advocate offices enjoy special immunity, and the information is protected by legal professional privilege.

Various commercial structures are often used to store originals of important documents; for example, original documents or documents certifying ownership.

7.4

Under what circumstances can the government demand that a company employee produces documents to the government, or raid the home or office of an employee and seize documents?

As described previously, the government has the right to perform such actions only through a court ruling.

7.5

Under what circumstances can the government demand that a third person or entity produce documents to the government, or raid the home or office of a third person or entity and seize documents?

As described previously, the government has the right to perform such actions only through a court ruling. Crimes relating to corruption pose a significant threat as confiscation of property is present in such cases.

Questioning of Individuals: 7.6

Under what circumstances can the government demand that an employee, officer, or director of a company under investigation submit to questioning?

In what forum can the questioning take place?

Any of the said individuals can be submitted for questioning at any moment. If the individual does not agree to submit voluntarily, they can be forced to do so by the court ruling. It should be noted that if the submitted individual has completed an application regarding the damages created by such submission, such as absence from work and other damages, the government or the firm has to pay for the damages caused. This also relates to entities.

7.7

Under what circumstances can the government demand that a third person submit to questioning? In what forum can the questioning take place?

See question 7.6.

7.8

What protections can a person assert upon being questioned by the government? Is there a right to be represented by an attorney during questioning? Is there a right or privilege against self-incrimination that may be asserted? If a right to assert the privilege against self-incrimination exists, can the assertion of the right result in an inference of guilt at trial?

Ukraine

Document Gathering:

Ukraine

A defender is a lawyer who protects the suspect, accused, convicted, acquitted and the person who assumed the use of coercive measures of a medical or educational nature or a question about their use.

Defenders may be involved by the accused, investigator, prosecutor, judge or court in cases envisaged by the law governing legal aid. The participation of the defender is mandatory in criminal proceedings concerning particularly serious crimes. If the accused does not have the funds to cover such expenses, the government must provide him with a defender, which is also the case where the accused is under the age of 18 or the mental state of the accused does not allow for self-representation, etc.

8 Initiation of Prosecutions / Deferred Prosecution / Civil Dispositions 8.1

How are criminal cases initiated?

If there is a reason and sufficient grounds, the prosecutor, investigator, body of inquiry or judge are obliged to issue an order to institute criminal proceedings, stating the reasons and grounds for instituting proceedings, the criminal law article on the basis of which the proceedings are initiated, and its direction.

If at the time of institution of criminal proceedings the perpetrator is found, criminal proceedings should be brought against that person.

After the initiation of the case, the following steps usually occur: (1)

the prosecutor forwards the case for the creation of a pre-trial investigation or inquiry;

(2)

the investigator starts a pre-trial investigation and the inquiry agency begins its inquiry; and

(3)

the court shall appoint a case to the proceedings.

8.2

What rules or guidelines govern the government’s decision to charge an entity or individual with a crime?

The grounds for initiating criminal proceedings may be as follows: (1)

statements or reports of enterprises, institutions, organisations, officials, representatives of government, public or individual citizens;

(2)

communications from the government, the public or individual citizens, reporting the suspect to be at the crime scene or in the act;

(3)

voluntary surrender;

(4)

reports published in the press; and

(5)

direct detection by the inquiry agency, investigator, prosecutor or court of evidence of a crime.

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BOGATYR & PARTNERS The matter may be brought only in cases where there is sufficient evidence indicating the existence of a crime.

Ukraine

8.3

Can a defendant and the government agree to resolve a criminal investigation through pretrial diversion or an agreement to defer prosecution? If so, please describe any rules or guidelines governing whether pretrial diversion or deferred prosecution agreements are available to dispose of criminal investigations.

Such agreements are not provided in the Ukrainian law system; however, there are agreements of delaying the execution, agreement of reconciliation as well as the agreement of sincere repentance.

An agreement on reconciliation between the victim and the suspect or the accused may be concluded in the proceedings concerning criminal offences or crimes of small and medium severity in criminal proceedings in the form of private prosecution. The conclusion of the settlement in criminal proceedings against the authorised person of the legal person who committed a criminal offence in respect of which that person carried out proceedings against a legal entity is not allowed.

Implementation of a conviction sentence of correctional labour, arrest, confinement, detention in a disciplinary military unit and imprisonment can be postponed in case of: serious illness that prevents the execution of sentences (for the defendant’s recovery); pregnancy or presence of a minor child of up to three years of age, in cases where a person is convicted of a crime that is not particularly serious; and if immediate punishment may lead to extremely serious consequences for the convict or his family because of special circumstances (fire, natural disaster, serious illness or death of one of the working family member, etc.), the term may be set by the court not more than one year after the judgment has taken legal effect. Delaying execution is not allowed for persons convicted of serious and particularly serious crimes, regardless of the sentence.

8.4

If deferred prosecution or non-prosecution agreements are available to dispose of criminal investigations in your jurisdiction, must any aspects of these agreements be judicially approved? If so, please describe the factors which courts consider when reviewing deferred prosecution or nonprosecution agreements.

See question 8.3.

8.5

In addition to, or instead of, any criminal disposition to an investigation, can a defendant be subject to any civil penalties or remedies? If so, please describe the circumstances under which civil penalties or remedies may apply.

In addition to the main sanction, additional sanctions can be introduced, such as deprivation of a military or special title, rank, grade or qualification class, as well as deprivation of the right to occupy certain positions or engage in certain activities.

Deprivation of the right to occupy certain positions or engage in certain activities can be assigned as the main punishment for a term of two to five years or as additional punishment for a term of one to three years.

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Ukraine 9 Burden of Proof 9.1

For each element of the business crimes identified above in Section 3, which party has the burden of proof? Which party has the burden of proof with respect to any affirmative defences?

In all cases, the burden of proof lies with the accusing party, i.e. the prosecutor. In consideration of the defence, the defendant can provide the court with materials and evidence in order to provide proof.

9.2

What is the standard of proof that the party with the burden must satisfy?

Evidence is admissible if it is received in the manner prescribed by the criminal procedures in Ukraine, such as by investigation and other means. Illegal evidence cannot be used in making procedural decisions; it cannot be invoked in the court’s judgment. Evidence should be inadmissible if it was obtained as a result of a significant violation of rights and freedoms.

9.3

In a criminal trial, who is the arbiter of fact? Who determines whether the party has satisfied its burden of proof?

An arbiter is not provided in criminal cases. The court decides on if the party has satisfied the required amount of proof for decisionmaking.

10

Conspiracy / Aiding and Abetting

10.1 Can a person who conspires with or assists another to commit a business crime be liable? If so, what is the nature of the liability and what are the elements of the offence?

The Ukrainian procedural process provides a definition of the individuals involved in crime. A contractor (subcontractor) is subject to criminal liability, for a crime committed by him. The organiser, instigator and accomplice are all subject to criminal liability for the crimes they have committed.

In the case of unfinished crime, other accomplices shall be criminally liable for complicity in the unfinished crime. Accomplices should not be criminally liable for acts committed by the contractor if it was not their intent; however, they should still be liable for other criminal activities they have taken part in.

11 Common Defences 11.1 Is it a defence to a criminal charge that the defendant did not have the requisite intent to commit the crime?

If so, who has the burden of proof with respect to intent?

According to court practice, such a situation where we have an individual who is not directing their will to achieve the result, nevertheless knowingly allows its occurrence. Most often it is a conscious assumption expressed in indifference to consequences.

In other words, a person who is not concerned about the socially

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11.2 Is it a defence to a criminal charge that the defendant was ignorant of the law, i.e., that he did not know that his conduct was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant’s knowledge of the law?

In Ukrainian law, ignorance of the law does not free the individual of the consequences.

11.3 Is it a defence to a criminal charge that the defendant was ignorant of the facts, i.e., that he did not know that he had engaged in conduct that he knew was unlawful? If so, what are the elements of this defence, and who has the burden of proof with respect to the defendant’s knowledge of the facts?

In such cases, the burden of proof lies on the defendant and his representatives; however, in general practice, it is viewed in the same way as ignorance of the law, and therefore it does not free the individual from the consequences.

12 Voluntary Disclosure Obligations 12.1 If a person or entity becomes aware that a crime has been committed, must the person or entity report the crime to the government? Can the person or entity be liable for failing to report the crime to the government? Can the person or entity receive leniency or “credit” for voluntary disclosure?

Failing to report a crime of high or particularly high seriousness may lead to imprisonment three months up to three years, depending on the level of seriousness. Family members or close relatives of the person who committed the crime should not be liable for failing to report such.

13.2 Describe the extent of cooperation, including the steps that an entity would take, that is generally required of entities seeking leniency in your jurisdiction, and describe the favourable treatment generally received.

The agreement of sincere repentance places an obligation on the suspect or accused to cooperate in exposing the criminal offence committed by themselves or another person. See question 14.1.

14

A person who first committed a minor offence or a crime of medium seriousness due to carelessness, except for corruption offences, can be exempt from criminal liability if after the crime they sincerely repent, actively contribute to the detection of the crime and fully reimburse the damages caused by it.

Plea Bargaining

14.1 Can a defendant voluntarily decline to contest criminal charges in exchange for a conviction on reduced charges, or in exchange for an agreed-upon sentence?

This is possible in the case of sincere repentance by the defendant of the offence as fact. The defendant can negotiate the charge with the prosecutor in this case. It is possible for the defendant and the prosecutor/victim to sign a delayed prosecution agreement. The court has the power to allow such agreements or declines them if the content does not meet the requirements.

14.2 Please describe any rules or guidelines governing the government’s ability to plea bargain with a defendant.

Must any aspects of the plea bargain be approved by the court?

If the agreements are reached during the proceedings, the court shall immediately stop conducting the proceedings and proceed to examine the agreement. Before making a decision on approval of the agreement on the recognition of guilt, the court must ensure that the agreement is voluntary. The Court examines the agreement to meet the requirements of the Code and/or the law.

Court denies approval of the agreement if: (1)

the terms of the agreement are contrary to the requirements of the Criminal Procedure Code and/or the law, including the incorrect legal qualification of the criminal offence which is more serious than that which is provided with respect to the possibility of concluding an agreement;

(2)

the terms of the agreement do not meet the interests of society;

(3)

the terms of the agreement violate the rights, liberties or interests of parties or other persons;

(4)

there are reasonable grounds to believe that an agreement was not voluntary, or the parties have reconciled;

(5)

it is obviously impossible for execution of the accused’s obligations under the agreement; and

(6)

there is no factual basis for a conviction.

13 Cooperation Provisions / Leniency 13.1 If a person or entity voluntarily discloses criminal conduct to the government or cooperates in a government criminal investigation of the person or entity, can the person or entity request leniency or “credit” from the government? If so, what rules or guidelines govern the government’s ability to offer leniency or “credit” in exchange for voluntary disclosures or cooperation?

Ukraine

dangerous consequences of his act still allows for the possibility of the outcome, and therefore he should be liable for his indifference.

Ukraine

15 Elements of a Corporate Sentence 15.1 After the court determines that a defendant is guilty of a crime, are there any rules or guidelines governing the court’s imposition of a sentence on the defendant? Please describe the sentencing process.

Such actions are described in the Criminal Procedural Code. The usual procedure consists of the verdict being prescribed and the deadlines of the appeal being determined. After this, the verdict takes effect.

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BOGATYR & PARTNERS 15.2 Before imposing a sentence on a corporation, must the court determine whether the sentence satisfies any elements? If so, please describe those elements.

Ukraine

Such practice is absent in Ukraine.

16

Appeals

16.1 Is a guilty or a non-guilty verdict appealable by either the defendant or the government?

Such verdict can be appealable by the defendant as well as the government in the role of the prosecutor.

16.2 Is a criminal sentence following a guilty verdict appealable? If so, which party may appeal?

An appeal against the sentence, ruling or decision of the trial court, unless otherwise provided by the Criminal Procedural Code of Ukraine, may be filed within 15 days from the date of their announcement (and the convict, who is in custody) at the same time (15 days) from the date of handing him a copy of the judgment of the court that decided the verdict, ruling or decision.

Ukraine 16.3 What is the appellate court’s standard of review?

The Court of Appeal tends to check the correctness of the application of the norms of substantial law and procedural rules by first instance courts. Usually, the courts of appeal pay greater attention to the uniformity of the application of the law, which is done by three or more qualified judges.

16.4 If the appellate court upholds the appeal, what powers does it have to remedy any injustice by the trial court?

The court may decide to a) uphold the decision of the trial conducted by the first instance, b) change the decision of the first instance and make a new decision, or c) cancel the decision of the first instance and send the case for retrial. At the same time, it should be noted that the investigation of new evidence and full consideration of the case is conducted only by courts of first instance, and if the Court of Appeal has uncovered any violations when considering the decision of the first instance in which it is necessary to collect more evidence, the only way forward is to conduct a retrial.

Volodymyr Bogatyr

The appeal may be filed by: (1)

the defendant in respect of whom the conviction was adopted, his legal representative or defender – concerning the interests of the accused;

(2)

the defendant in respect of whom the acquittal was approved, his legal representative or defender – in terms of motives and grounds for acquittal;

(3)

the suspect, his legal representative or defender;

(4)

the legal representative or a minor or very minor defender, which was decided on the application of compulsory educational measures – related to the interests of a minor;

(5)

the legal representative and defender of a person against whom is put a question on the application of compulsory medical measures;

(6)

the prosecutor; and

(7)

the victim or his legal representative or representative – concerning the interests of the victim, but within the requirements stated by them at first instance.

BOGATYR & PARTNERS 32/34 Shovkovychna Str., Office 24 Kyiv, 01024 Ukraine Tel: +38 44 363 77 22 Email: volodymyr@bogatyr.kiev.ua URL: www.bogatyr.com

Dr. Bogatyr has served as a Deputy Minister of Justice of Ukraine from 2007 to 2011, and was recognised as “An Honoured Lawyer of Ukraine” by the President of Ukraine in 2010. He was admitted as an advocate in Ukraine, a foreign advocate in Russia (2014) and in Poland (2015). In 2014, Dr. Bogatyr successfully acquired a Ph.D. in Jurisprudence at the Institute of Legislation of the Supreme Council of Ukraine. Dr. Bogatyr is a member of the International Bar Association, Ukrainian Bar Association, Okręgowa Rada Adwokacka w Katowicach, Union of Lawyers of Ukraine, Union of Advocates of Ukraine, and International Division of the Law Society for England and Wales.

BOGATYR & PARTNERS is a full-service boutique law firm based in the heart of Kyiv, Ukraine. We have a particular focus and experience in business crime, fraud, asset tracing & recovery, commercial litigation in Ukraine and internationally legal assistance in challenging economic sanctions. In 2015, we successfully represented an international financial institution in a USD 72 million debt recovery dispute. The team has also successfully acted for a Dutch-owned leading Ukrainian bank in its USD 44 million loan agreement dispute. Together with Soteris Pittas & Co., we acted for a private client in a complex cross-border fraud matter involving tracing assets in Canada and Switzerland, obtaining a freezing injunction and recovering USD 70 million via Cyprus courts. Our law firm was first to create a precedent of recognition and enforcement of judgments of the British courts in Ukraine.

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