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ICLG

The International Comparative Legal Guide to:

Business Crime 2017


7th Edition
A practical cross-border insight into business crime
Published by Global Legal Group, in association with CDR, with contributions from:
Anagnostopoulos Criminal Law & Litigation

Kachwaha and Partners

Baker & Partners

Lampert & Partner Attorneys at Law Ltd.

BCL Solicitors LLP

Linklaters LLP

Bloomfield Law Practice

Maples and Calder

BOGATYR & PARTNERS

Matheson

Clayton Utz

MJM Limited

De Pedraza Abogados

Nishimura & Asahi

Diaz, Reus & Targ LLP

Rogrio Alves & Associados

ELIG, Attorneys-at-Law

Skadden, Arps, Slate, Meagher & Flom LLP

Estudio Juridico Gangotena & Asociados

stetter Rechtsanwlte

Grlich & Co.

Studio Legale Pisano

Haldanes

VILARDI ADVOGADOS

Homburger AG

Zamfirescu Racoi & Partners Attorneys at Law

Ivanyan and Partners

The International Comparative Legal Guide to: Business Crime 2017


General Chapters:
1

Contributing Editors
Gary DiBianco & Ryan
Junck, Skadden, Arps, Slate,
Meagher & Flom LLP
Sales Director
Florjan Osmani
Account Directors
Oliver Smith, Rory Smith
Sales Support Manager
Paul Mochalski

The U.K. Bribery Act: Five Years On Elizabeth Robertson & Bora Rawcliffe, Skadden, Arps, Slate,
Meagher & Flom LLP

Developments in Corporate Criminal Liability: New Offences of Failing to Prevent Financial Crime
and Failing to Prevent Tax Evasion Guy Bastable & Richard Reichman, BCL Solicitors LLP
_

Mexico Moves Forward With New Anti-Corruption Act Marta Colomar-Garcia & Javier Ruiz,
Diaz, Reus & Targ LLP

Country Question and Answer Chapters:


4

Australia

Clayton Utz: Tobin Meagher & Greg Williams

Belgium

Linklaters LLP: Stefaan Loosveld & Gert-Jan Hendrix

Bermuda

MJM Limited: Jennifer Haworth

Brazil

VILARDI ADVOGADOS: Celso Sanchez Vilardi &


Luciano Quintanilha de Almeida

Sub Editor
Hannah Yip

British Virgin Islands

Maples and Calder: Arabella di Iorio & David Welford

Cayman Islands

Maples and Calder: Martin Livingston & Adam Huckle

10 Colombia

Diaz, Reus & Targ LLP: Michael Diaz Jr. & Marcela C. Blanco

11 Czech Republic

Grlich & Co.: Richard Grlich

12 Ecuador

Estudio Juridico Gangotena & Asociados: Martin Gangotena

13 England & Wales

BCL Solicitors LLP: Richard Sallybanks & Shaul Brazil

Published by
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Tel: +44 20 7367 0720
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14 Germany

stetter Rechtsanwlte: Dr. Sabine Stetter & Stephanie Kamp

15 Greece

Anagnostopoulos Criminal Law & Litigation: Ilias G. Anagnostopoulos &


Jerina (Gerasimoula) Zapanti

16 Hong Kong

Haldanes: Felix Ng & Emily Cheung

17 India

Kachwaha and Partners: Ashok Sagar & Sumeet Kachwaha

GLG Cover Design


F&F Studio Design

18 Ireland

Matheson: Carina Lawlor

19 Italy

Studio Legale Pisano: Roberto Pisano

20 Japan

Nishimura & Asahi: Yoshinori Ono & Norimitsu Yamamoto

21 Jersey

Baker & Partners: Stephen Baker & Cyril Whelan

22 Liechtenstein

Lampert & Partner Attorneys at Law Ltd.: Siegbert Lampert &


Martina Tschanz

23 Nigeria

Bloomfield Law Practice: Adekunle Obebe & Dayo Adu

24 Portugal

Rogrio Alves & Associados: Rogrio Alves

25 Romania

Zamfirescu Racoi & Partners Attorneys at Law:


Cozmin-Antoniu Obancia

26 Russia

Ivanyan and Partners: Vasily Torkanovskiy

27 Spain

De Pedraza Abogados: Mar de Pedraza & Paula Martnez-Barros

28 Switzerland

Homburger AG: Flavio Romerio & Roman Richers

29 Turkey

ELIG, Attorneys-at-Law: Gnen Grkaynak & . Olgu Kama

30 Ukraine

BOGATYR & PARTNERS: Volodymyr Bogatyr

31 USA

Skadden, Arps, Slate, Meagher & Flom LLP:


Gary DiBianco & Gary A. Rubin

Senior Editor
Rachel Williams
Chief Operating Officer
Dror Levy
Group Consulting Editor
Alan Falach
Group Publisher
Richard Firth

GLG Cover Image Source


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Printed by
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October 2016
Copyright 2016
Global Legal Group Ltd.
All rights reserved
No photocopying
ISBN 978-1-911367-19-2
ISSN 2043-9199
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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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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?

2 Organisation of the Courts


2.1

How are the criminal courts in your jurisdiction


structured? Are there specialised criminal courts for
particular crimes?

The Ukrainian authorities which can prosecute business crimes are:


the general prosecutors office; and departments of the prosecutors
office in different regions. However, only the prosecutors office
has the authority to charge an individual or entity with a crime. For
investigation purposes, all information and investigations provided
by different law enforcement authorities such as police, tax police,
the Security Service, and the National Anti-Corruption Bureau can
be used.

Specialised courts for particular crimes are absent in Ukraine.


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

1.2

2.2

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 the 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; the prosecutors office defines the jurisdiction through a
special procedural heading. In cases 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?

There is civil and administrative enforcement in Ukraine.


Administrative enforcement is usually related to cases such as
infringement of taxes and different administrative procedures, in
addition to business cases related to the 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 regarding the qualification of fraud for Ukraine; it can
only be criminal in accordance with the Ukrainian law.

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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:

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 nontaxable minimum incomes.

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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o

Insider trading
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 disqualification
to hold certain positions or engage in certain activities for up
to three years or without it.

Embezzlement

Ukraine
o

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 of the party, 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

Money laundering or wire fraud

Such activity is managed by the antimonopoly committee.


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 and
change 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.

The appropriation or embezzlement of anothers property


that has been entrusted to a person, or which was in his
jurisdiction, is punishable by correctional labour for up to two
years, 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 or without
it.
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 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 one hundred to two hundred hours, or imprisonment
for up to two years.

This is regulated by a specialised law of Ukraine regarding


the protection from unfair competition.

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 entitles property.
They are usually qualified as civil and administrative offences

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 a 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.

Government-contracting fraud
There is no specific statute for such crime, therefore it usually
qualifies the same as embezzlement

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

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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 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.

Criminal anti-competition

This law defines the legal basis of protection of entities and


consumers against unfair competition. Law is aimed at
establishing, developing and providing trade and other fair
traditions in competition when performing economic activity
in market conditions.

Campaign-finance/election law

3.2

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 concept of crime defines 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 the completed crime which,
although it has signs of any offence under the criminal law, due to
insignificance, it is not a public danger. In particular, the following
situations do not constitute a crime, e.g. an attempt that is not a
public danger (e.g. attempted destruction or damage to property that
has no value).
The procedural rule states that the only reason why there could be
criminal responsibility to a person is if that person has committed
socially dangerous acts which appear 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 installed in the individual act of
a crime. In preparation for a crime and attempted crime, unfinished
composition means that the composition or preparation of a crime
constitutes attempted crime.

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BOGATYR & PARTNERS


4 Corporate Criminal Liability
4.1

Is there entity liability for criminal offences? If so,


under what circumstances will an employees conduct
be imputed to the entity?

An entity can be liable for criminal offences regarding its economic


activity, such as the list of offences provided above. The conduct
of the employee is taken into account in most cases, as in where the
actions of the employee have led to 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

Is there personal liability for managers, officers, and


directors if the entity becomes liable for a crime?
Under what circumstances?

It is only the entity which is liable for crimes committed by the


employed officials. There are institutes of legal liability; however,
in practice, they are rarely used.
4.3

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.

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 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.

Ukraine
6 Initiation of Investigations
6.1

Do enforcement agencies have jurisdiction to enforce


their authority outside your jurisdictions 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?

Such practice is absent in Ukraine; the enforcement agencies are to


investigate crimes committed only in their appointed region.
6.2

How are investigations initiated? Are there any rules


or guidelines governing the governments 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 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 of forming
and maintaining is approved by Prosecutor General of Ukraine
in coordination with the Ministry of Internal Affairs of Ukraine,
Security Service of Ukraine, and the National Anti-Corruption
Bureau of Ukraine, as well as the body that monitors the compliance
of 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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BOGATYR & PARTNERS


Document Gathering:
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?

Ukraine
7.7

See question 7.6.


7.8

The government can demand a company to produce documents only


through court ruling if the judge decides such measures 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 the legal professional privilege.
Various commercial structures often store the originals of important
documents, e.g. the original documents or documents certifying
ownership.
7.4

Under what circumstances can the government


demand that a company employee produce
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 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?

Under what circumstances can the government


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

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?

The defender is a lawyer who protects the suspect, accused,


convicted, acquitted, and the person who assumed the use of
coercive measures of medical or educational nature or a question
about their use.
The defender may be involved by the accused, investigator,
prosecutor, investigator, 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. This is also the case
where the accused is under the age of 18, or if the mental state of the
accused does not allow for self-representing, etc.

8 Initiation of Prosecutions / Deferred


Prosecution / Civil Dispositions
8.1

How are criminal cases initiated?

If there is 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 can usually occur:

As described previously, the government has the right to perform


such actions only through court ruling. Crimes relating to corruption
impose 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?

1)

the prosecutor sends the case for the production of pre-trial


investigation or inquiry;

2)

the investigator starts pre-trial investigation and inquiry


agency begins inquiry; and

3)

the court shall appoint a case to the proceedings.

8.2

What rules or guidelines govern the governments


decision to charge an entity or individual with a
crime?

Grounds for initiating criminal proceedings may be as follows:


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.

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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, detained the suspect at the crime scene or
in the act;

3)

voluntary surrender;

4)

reports published in the press; and

5)

direct detection of 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.
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 execution and agreement
of reconciliation, as well as the agreement of sincere repentance.
Agreement of 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 to correctional labour,
arrest, confinement, detention in a disciplinary military unit
and imprisonment can be postponed in cases of: serious illness
that prevents the execution of sentences for his recovery; and
pregnancy or in the presence of a minor child (i.e. up to three years
old) in cases where a person is convicted of a crime that is not
particularly serious. This is also the case 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 members, etc.)
the term set by the court is, in this case, no 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 on the accusing party, i.e. the
prosecutor. In consideration to the defences, the defendant can
provide the court with the necessary 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 courts 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


whether the party has satisfied the required amount of proof for
decision-making.

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 the crime. A contractor (subcontractor) is
subject to criminal liability which provides for the crime committed
by him. The organiser, instigator and accomplice are all subject to
criminal liability for the crimes they have performed.
In the case of individuals unfinished crimes, other accomplices
shall be criminally liable for complicity in unfinished crime.
Accomplices should not be criminally liable for acts committed by
the contractor if it was not of their intent; however, they should still
be liable for other criminal activities in which they have taken part.

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, the person who is not interested in being of socially

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dangerous consequences of his act still allows for the possibility of
the outcome; therefore, he should still be liable on account of his
indifference.
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 defendants knowledge of
the law?

Ukraine
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 puts obligations on the suspect


or accused to cooperate in exposing the criminal offence committed
by himself or another person. See question 14.1.

14

In Ukrainian law, ignorance of the law does not free the individual
from 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
defendants 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; 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?

Failing to report a crime which is of great severity may lead to an


imprisonment for up to three months or imprisonment for 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.

13

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?

It 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 to sign a delayed prosecution
agreement between the defendant and the prosecutor or the victim.
The court has the power to allow such agreements or decline them if
the content does not meet the requirements.
14.2 Please describe any rules or guidelines governing the
governments 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 to conduct 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 Criminal Procedural Code and/or the
law.
The court denies approval of the agreement if:
1)

The terms of the agreement are contrary to the requirements


of the Criminal Procedural Code and/or the law, including the
allowed 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 violates 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)

The obvious impossibility of execution of the accused taken


on obligations under the agreement.

6)

There is no factual basis for a conviction.

Cooperation Provisions / Leniency

13.1 If a person voluntarily discloses criminal conduct


to the government or cooperates in a government
criminal investigation of the person, can the person
request leniency from the government? If so, what
rules or guidelines govern the governments ability to
offer leniency in exchange for voluntary disclosures
or cooperation?

The person who first committed a minor offence or a crime of


medium severity due to carelessness, except for corruption offences,
can exempted from criminal liability if they sincerely repent after
having committed the crime, actively contribute to the detection of
crime and fully reimburse the damages caused by it.

Plea Bargaining

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 courts 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

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deadlines of the appeal being determined. After this, the verdict
takes effect.

Ukraine
3)

the suspect, his legal representative or defender;

4)

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.

the legal representative, defender minor or very minor, which


was decided on the application of compulsory educational
measures in the part related to the interests of a minor;

5)

the legal representative and defender of a person against


whom there is a question on the application of compulsory
medical measures;

Such practice is absent in Ukraine.

6)

the prosecutor; or

7)

the victim or his legal representative or representative in


the part concerning the interests of the victim, but within the
requirements stated by them at first instance.

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 the copy of the judgment by
the court that decided the verdict, ruling or decision.
The appeal may be filed by:
1)

the defendant, in respect of whom was adopted conviction,


his legal representative or defender in the part concerning
the interests of the accused;

2)

the defendant in respect of whom was approved acquittal, his


legal representative or defender in terms of motives and
grounds for acquittal;

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16.3 What is the appellate courts standard of review?

The court of appeal tends to check the correctness of applying


the norms of substantial law and procedural rules by first instance
courts. Usually, the courts of appeal pay greater attention towards
the uniformity of law application, and it 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 the 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, then the only way is to conduct the retrial.

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Ukraine

Volodymyr Bogatyr
BOGATYR & PARTNERS
32/34 Shovkovychna Str., office 24
Kyiv
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 The 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, Okrgowa Rada Adwokacka w Katowicach,
Union of Lawyers of Ukraine, Union of Advocates of Ukraine, and the
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, and commercial litigation in Ukraine and international 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 the first to create a precedent of recognition and enforcement of judgments of
the British court in Ukraine.

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