Lawyers, judges, and prosecutors participated in the LHS Discussion Hub titled “Criminal Prosecution of Individuals Outside Ukraine”

Lawyers discussed current issues related to the criminal prosecution of individuals outside Ukraine as part of the LHS Discussion Hub. The discussion was moderated by Iryna Honchar, editor of the journal *Ukrainian Lawyer*, and Oleksiy Shevchuk, a partner at Barristers Law Firm.

As the presentations revealed, the difficulties in this area stem from imperfect legislation, as well as the fact that not all participants in the process are prepared to work in accordance with best practices. The positions of attorneys, prosecutors, and judges were presented, with each group substantiating their views with specific case studies.

Lawyers believe that law enforcement agencies exceed the limits set by criminal procedure law and exploit loopholes to their own advantage. Oleksandr Zhyla, a prosecutor with the Kyiv City Prosecutor’s Office, acknowledged that prosecutors often seize foreign passports during searches and only then file a corresponding motion with the court. In addition to the foreign passport, they also seize the national passport. However, lawyers sometimes manage to recover the foreign passport, in which case prosecutors have no authority to restrict the person’s departure. However, if the person leaves the country, the prosecution requests that the preventive measure be strengthened, arguing that the person left specifically to evade criminal liability. In such a case, the investigator must confirm that the suspect has left the country and file a motion to change the preventive measure. Then, either investigative actions are carried out, or orders to conduct investigative actions are issued.

Alexander Shadrin, a partner at Barristers LLP, expressed the opposite view. If the person was only required to appear before the investigative authorities, then they had the right to leave, Mr. Shadrin argues. Now, however, the prosecutor’s office immediately alleges that the person is evading the investigation upon their departure. To what extent is this proportionate and appropriate? The person could have left for medical treatment or vacation.

A judge from the Solomyanskyi District Court of Kyiv answered the question of who abuses their rights more. In her opinion, it is the lawyers who abuse them more. “The delay in the proceedings is the fault of the defense, not the prosecutor,” stated Ms. Zelinska. Public figures under investigation are quite wealthy (they often hold dual citizenship, which complicates the process). As a rule, they have four or five lawyers. The court often faces situations where one lawyer is involved in another case, another is sick, and a third is on a business trip. When all the lawyers fail to appear, the hearing is canceled.

But lawyers do not always act in their clients’ best interests. For example, the judge recalled a case where a lawyer, on behalf of a client who was in Russia, received a notice of suspicion that was completely inconsistent with the criminal proceedings. Moderator Oleksiy Shevchuk does not deny that many lawyers abuse their rights, but often they simply lack the necessary experience and knowledge. It happens that defense attorneys do not know how Interpol works.

Denis Ovcharov, a partner and head of the business defense practice at Lavrynovych & Partners Law Firm, confirmed that when dealing with the law enforcement system, clients do indeed often decide to leave Ukraine. It takes six to seven years to secure an acquittal in Ukraine, he noted, adding that “absurd charges lead clients to view the acquittal itself as absurd.” According to him, attorneys recommend organizing business processes in such a way that there is always a chance to legally leave for another country, manage the business from there, and await the court’s decision there. In Ukraine, obtaining a fair ruling is a long and expensive process. “As long as law enforcement officials abuse their powers, the practice of ‘skiing’ the law will continue to flourish,” the attorney said, describing the problem. “It’s not that hard to send a client to warmer climes; it’s much harder to get them back from there,” the lawyer stated, explaining that clients are often unprepared for departure, and this can only do more harm than good. In his opinion, suspects in most economic crimes are not advised to leave the country. There is a risk of losing their business and reputation, spending a considerable amount of money on lawyers, and causing harm to loved ones and business partners.

The speakers emphasized that the effectiveness of rights protection still leaves much to be desired. Zlata Symonenko, a partner at Solodko & Partners, explained that it is quite common for a person to be removed from the wanted list, but the person is still publicly listed as wanted; or when a person is no longer on an international wanted list but remains on a national one, which significantly limits their ability to return to their home country.

As indicated in the remarks by Prosecutor Oleksandr Zhyla, law enforcement agencies in different countries do not always succeed in establishing effective cooperation. For example, in one case, U.S. prosecutors were unable to defend the position of their Ukrainian counterparts in court. A U.S. court ruled that the indictment issued in Ukraine was not formulated entirely correctly. It is not enough simply to issue an indictment; the documents must provide sufficient evidence to establish that the individual is involved in the crime. At the same time, email correspondence directly with investigators facilitates the work of law enforcement officials: they can forward necessary information to colleagues, offer advice, suggest how best to present a legal position, and so on. Mr. Zhyla also advised defense attorneys to effectively engage with foreign entities at the operational level, rather than merely appealing to the UN or the ECHR.

Lawyers complained that Ukrainian investigating judges do not verify the validity of the suspicion, claiming that it will be established at later stages. However, Zlata Symonenko does not fully agree with her colleagues’ opinion: she believes that everything depends on the judges. Sometimes judges meticulously analyze the suspicion and the documents supporting it. In extradition cases, it is quite common for investigators to submit documents in a foreign language without a translation, and the court does not accept them. On the other hand, Maria Zelinska, a judge of the Solomyanskyi District Court of Kyiv, explained that whenever judges take a principled stance against violations, information immediately appears in the Unified Register of Pre-trial Investigations regarding the opening of criminal proceedings under Article 375 of the Criminal Code of Ukraine against the judge in question. However, as Zlata Symonenko noted, investigators devote more effort to opening criminal proceedings under Article 375 of the Criminal Code of Ukraine than to preparing high-quality case materials.

Dmytro Morgun, managing partner of ANTEVERIS Law Firm, pointed out that, specifically in Kyiv, law enforcement officials tend to arrest suspects in the Solomyanskyi district of the capital, since the judges of the relevant district court are more competent in matters of extradition, given the presence of Zhuliany International Airport within that district’s territory. At the same time, the attorney posed a pointed question: Does Ukraine violate international conventions if it extradites a suspect to a country that has renounced certain guarantees under the Convention, as Turkey did following the events of 2015? In response, Oleksandr Zhyla stated that the individuals being extradited are citizens of another country, and that country has the right to prosecute them. Risks must be assessed on a case-by-case basis; otherwise, any trip abroad by an individual would guarantee evasion of responsibility, which is incorrect.

In conclusion, the attorneys noted that most of the issues raised require resolution through the development of case law and amendments to procedural legislation, as well as oversight of compliance by all parties to the proceedings and the court—through the relevant competent authorities.