“PRIKHODKO&PARTNERS” CANCELED THE ARREST OF DFS OF UKRAINE

In April 2018, an illegal search took place at "PRIKHODKO&PARTNERS" client during which the laptop was removed.

Thus, the investigating judge was ordered to conduct a search of the Limited Liability Company. It was seen from the text of this decree that the investigating judge authorized search for the search and seizure of primary and accounting documents on the relationship of partnerships with counterparties appearing in criminal proceedings and draft records on which information on financial and economic relations is stored. The investigator judge did not provide direct permission for the removal of computer equipment, which was seen from the text of the decree.

The investigator in the course of the search removed the aforementioned notebook for a computer-technical examination.

This notebook was in the official use of the chief accountant who carried out accounting and financial statements through it, as a result of the illegal seizure and seizure of property, namely, the notebook is the stoppage of the company, which caused a material damage in the amount of UAH 298 672.02, lost profits in the amount 260 503.00 UAH, salary expenses 31 200,45 UAH and the cost of paying taxes is 6,968.57 UAH.

In addition, the management of the company was questioned as witnesses, there were no reports of suspicion in the said criminal proceedings, any evidence of involvement of the enterprise and its officials in the illegal activities.

In accordance with Part 1 of Art. 170 of the CPC of Ukraine, the seizure of property is temporary, until the cancellation in accordance with the procedure established by this Code, the deprivation of the right of the investigating judge or court to the right to alienate, dispose and / or use property for which there is a combination of grounds or reasonable suspicion to consider that it is evidence of an offense , subject to special confiscation of a suspect, accused, convicted, third party, confiscation of a legal entity, to secure a civil suit, to recover from the legal entity the unlawful gain received, possible confiscation of property. The seizure of property is canceled in accordance with the procedure established by this Code.

The seizure of property may also be canceled in whole or in part by a decision of the investigating judge during a pre-trial investigation or trial during a judicial proceeding at the request of a suspect, accused, their defense counsel or legal representative, other owner or possessor of property, if they prove that subsequent application of this measure there is no need or arrest imposed unreasonably.

Since the imposition of the arrest and before the application of "PRIKHODKO&PARTNERS" to the court, a considerable time has passed in the application for the cancellation of the arrest, however, the investigator has not appealed to the court for the appointment of computer-technical expertise. And so the computer kept it without a foot.

Based on the analysis of the foregoing, the said norm links the right of the investigating judge to cancel the arrest of property, with the possibility of providing participants with the process, evidence and information indicating that the arrest was imposed unreasonably, or in its application, there was no need and evidence before the investigating judge of their legality and credibility.

In accordance with the judgment of the European Court of Human Rights in the case of Ismailov v. Russia dated November 6, 2008, which indicated violation of Art. 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, which states that every natural person and legal entity has the right to peacefully own property. No one shall be deprived of his property otherwise than in the interests of society under the conditions provided by law and the general principles of international law ".

The norm of art. Article 41 of the Constitution of Ukraine establishes the inviolability of the right of a person to own, use and dispose of his property.

Thanks to the experience of  "PRIKHODKO&PARTNERS" specialists in the investigating authorities and the prosecutor's office, a clear understanding of the mechanisms of law enforcement, the law office guarantees business security.