Denis Ponomarenko, a partner at Barristers, LLC, told the LHS audience how to handle interactions with investigators during the pretrial investigation phase in cases involving tax evasion and fictitious business operations

Denis Ponomarenko, a partner at Barristers Law Firm.

When it comes to cases under Articles 205 and 212 of the Criminal Code of Ukraine, the lecturer advises paying attention to the issue of jurisdictional authority during the pre-trial investigation stage. Under the law, such crimes are investigated by an investigative body responsible for ensuring compliance with criminal legislation. However, the law does not provide a specific answer as to which bodies these are. In practice, this body is the tax police; however, the section regarding it was removed from the Tax Code of Ukraine. Despite this, the body exists (even under the Criminal Procedure Code (CPC) of Ukraine). This problematic issue arose two years ago but remains unresolved to this day.

The CPC of Ukraine (specifically, Article 216) strictly delineates the jurisdiction of law enforcement agencies. However, Article 36 of the same Code, which regulates the procedure for transferring investigative jurisdiction, states that a prosecutor does not have the authority to transfer investigative jurisdiction between different agencies, but only within a single agency and only in the event that the agency has conducted the pretrial investigation improperly. In all other cases, such a change in investigative jurisdiction is considered unlawful. The lecturer advises relying precisely on this article when developing a defense strategy for a client. He also adds Article 94 of the CPC of Ukraine regarding the exclusion of evidence to this list.

According to Denys Ponomarenko, lawyers very often decide to adopt a “do-nothing” strategy—that is, to wait for a summons to court, for questioning, etc., and if none are issued, to simply not appear at all. However, the lecturer is convinced that in most cases this tactic is incorrect, since both the prosecution and the defense must be active during the pretrial investigation stage. The defense attorney must clearly see the goal they wish to achieve in a specific case. The defense can take proactive steps through attorney’s inquiries, complaints, appeals, and so on. These same tools can also help in choosing a strategy that involves turning the fact that the investigator’s deadlines are running out to one’s advantage.

Among other strategic moves described by the lecturer are challenging inspections, audits, or acts issued by tax authorities, as well as the method known as “simulated questioning.” The latter involves preparing the client for an interrogation by simulating such an interrogation. This ensures the client fully understands what to expect, how to behave, and how they will feel during the actual interrogation. As for the attorney, Denis Ponomarenko advises being as tough as possible, which will first and foremost help identify the client’s weaknesses that will then need to be addressed.