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How can an entrepreneur protect himself from a criminal case?
Lawyer Artem Chekotkov explains who and why from the law enforcement agencies has the right to send a request for information to a company and what this may lead to. And most importantly, how to protect yourself from illegal actions of law enforcement agencies?
Business always carries certain risks: financial, price, investment, reputational and many others. The peculiarity of domestic business processes is that they are also associated with criminal-law risks.
A signal that law enforcement agencies have become interested in a business
Recently, the economic crisis has led to the fact that the likelihood of criminal-law risks has increased, and entrepreneurs increasingly find themselves in a situation where their commercial activities can lead to loss of business or even imprisonment.
Such consequences are, of course, the most negative manifestations of operational and investigative measures in relation to business. And they do not occur in every case.
However, even the attention of law enforcement agencies to a company in itself can destabilize its activities for a long time.
A signal indicating that law enforcement agencies have become interested in your business is the receipt by the organization of a request "On the provision of documentation".
Sending a request is one of the most common actions of law enforcement officers. It is the first step in the process of implementing criminal-legal risks.
In this article, we will analyze how law enforcement officers exercise their authority to request documentation from commercial organizations, and also provide a number of practical recommendations that, in our opinion, can significantly reduce the criminal-legal risks of your business.
Massiveness of sending requests for documentation
Thus, the right to send requests is vested in a wide range of entities, from the Accounts Chamber of the Russian Federation to the control agencies of the executive branch (Rospotrebnadzor, Roszdravnadzor, etc.). In turn, the process of bringing to criminal liability is within the competence of only law enforcement agencies that request documentation in connection with the investigation of a criminal case or the verification of a statement of a crime (pre-investigation check).
In this case, businesses encounter the following bodies: the Ministry of Internal Affairs of the Russian Federation, the FSB of the Russian Federation, the Investigative Committee of the Russian Federation. Negative consequences for legal entities may also occur in the event of a prosecutor's inspection, within the framework of which employees of the Russian Prosecutor's Office also have the right to send requests for documentation.
Showing interest in the business, the designated entities first send requests to the company for documentation.
As already noted, this action is the first stage in the process of conducting an inspection (whether police or prosecutorial) and is implemented in the vast majority of cases.
The mass nature of sending requests is due, firstly, to the relative simplicity of its preparation (security officials only need to print a page of text).
Secondly, in the case of a response to a request, law enforcement officers receive a large amount of information, which can subsequently become evidence in a criminal case.
As a result, upon receiving a request, it is necessary to give it a legal assessment and only then make a decision on providing information. In order for the legal analysis of the received request to be complete and effective, first of all, it is necessary to understand what a truly legal and reasonable request is, the receipt of which obliges the company to provide the necessary documentation to law enforcement officers.
Legal nature of a request for documentation
A request for information and documents is a law enforcement act. In other words, by sending a request, law enforcement officers exercise the authority granted to them to obtain the necessary documentation. These powers are enshrined in federal legislation regulating the fundamentals of the activities of individual law enforcement agencies:
Based on these standards, law enforcement officers send requests to organizations to provide documents and information.
But it is important to understand that, like any other law enforcement act that provides for the fulfillment of any obligations, a request for information must have two properties - legality and validity:
These two components together make the security forces’ demand mandatory for execution and, accordingly, entail liability for ignoring the request.
Such interpretation of one's powers, in addition to demonstrating the low level of legal culture of a particular law enforcement officer, also creates room for abuse. Thus, in practice, there are frequent cases when, under the guise of investigating a single criminal case, information is requested that is completely unrelated to the facts being investigated.
Often, during the verification of a report of a crime, law enforcement officers request information on the entire financial and economic activity of an organization for all counterparties, naturally, without providing any grounds for requesting such a significant amount of information.
The consequences of such violations can be expressed, at a minimum, in the destabilization of the activities of a commercial organization.
The most common types of requests
We will demonstrate the most common types of requests, as well as the mistakes that law enforcement officers make when drafting them.
All of them can be grouped by stages of the criminal investigation and separately highlight the prosecutor's check:
Before initiating a criminal case (pre-investigation check stage)
Experience shows that the bulk of requests to organizations are sent precisely at the pre-investigation check stage.
In order to decide on initiating a criminal case, law enforcement officers need to collect as much information as possible indicating the facts of a crime. And the most convenient way to do this is to send a request for documentation.
In this case, businesses encounter the activities of the already legendary Department for Combating Economic Crimes and Anti-Corruption (OEBiPK) and, less often, with operational units of the FSB of the Russian Federation.
When sending a request to organizations, employees of these units, firstly, must indicate the legal norms that grant them the right to request documentation (clause 4, part 1, article 13 of the Federal Law "On Police" or clause "m" of article 13 of the Federal Law "On the Federal Security Service"), then the request will have the property of legality. In practice, these legal norms are contained in the texts of the request in most cases.
Secondly, and most importantly, the following information must be provided as factual support:
If these components are present simultaneously, the request can be considered truly legal and justified. Unfortunately, in practice, properly justified requests are extremely rare.
While law enforcement officials almost always provide information about the KUSP number and date, an explanation of the facts under investigation and, even more so, how the requested documentation relates to its subject is almost always absent.
In this case, when preparing a response, it is necessary to point out to law enforcement officers the shortcomings of the request with a request to properly justify their demands. Providing documents in such cases can lead to negative consequences, since the motives for sending a request can be very different.
After the initiation of a criminal case
In a situation where a criminal case has already been initiated, requests are not sent to organizations so often.
Criminal proceedings are no longer carried out by operational units, but by investigative units, which have enough other, more effective tools for obtaining information (conducting searches or seizures, for example).
However, often, under the guise of a criminal investigation, documents and information can be requested that are in no way related to the facts under investigation.
Such situations are not always caused by legitimate reasons, and therefore, upon receipt of a request, it is necessary to carefully check it for compliance with the criteria of legality and validity.
As in the case of a pre-investigation check, law enforcement officers must point to legal norms that establish the authority to send requests.
However, in practice, only Part 4 of Article 21 of the Criminal Procedure Code of the Russian Federation is cited as a legal basis, which states that the investigator's demands and requests submitted within the limits of their authority are mandatory for execution by all institutions, enterprises, organizations, officials and citizens.
This justification is incorrect and must be supplemented by a legal norm that grants such authority.
Regarding the actual argumentation of the request for documents and information, it is similar to the pre-investigation check stage and must contain information about the number and date of initiation of the criminal case, the facts under investigation, as well as information about how the requested information is related to the subject of the criminal case.
Prosecutor's inspection
As such, the purpose of a prosecutor's inspection conducted in relation to a commercial organization is not limited to bringing entrepreneurs to criminal liability.
Prosecutor's office employees inspect the company's activities for compliance with certain requirements of current legislation.
However, if the investigation reveals facts indicating that a crime has been committed, the materials of this investigation are sent to law enforcement agencies (police, Investigative Committee of the Russian Federation) to decide on initiating a criminal case.
Thus, an investigation by the prosecutor's office also carries criminal-legal risks for businesses.
The prosecutor's office employees are more careful about the justification of their demands. Most prosecutor's requests have a legal basis, and they also contain information about the facts being investigated.
But, as in all previously noted cases, the requests, as a rule, do not explain how the requested information can be related to the subject of the investigation.
In such a situation, the request cannot be considered motivated and the response to it must be given with a request to properly justify the demands.
Summarizing the description of the most typical situations in which commercial organizations are faced with receiving a request, it is necessary to draw a general conclusion for everyone that, unfortunately, in practice, proper justification of their demands by law enforcement agencies is not widespread.
Of course, providing documents in such cases is not mandatory, but it should also be remembered that the legislation establishes administrative liability for failure to comply with the requirements of law enforcement officers.
Liability for failure to submit documents
The Code of Administrative Offenses establishes two cases when entrepreneurs can be held liable for refusing to submit documents.
Firstly, Article 19.7 of the Code of Administrative Offenses of the Russian Federation "Failure to submit information" provides for liability in the form of:
— for legal entities — from three thousand to five thousand rubles.
These sanctions are applied for failure to submit documents if the request is received by the company at the pre-investigation stage (before the initiation of a criminal case).
Secondly, Article 17.7 of the Code of Administrative Offenses of the Russian Federation "Failure to comply with the legal requirements of the prosecutor, investigator, inquiry officer or official conducting proceedings on an administrative offense" provides for liability in the form of:
— for legal entities — from fifty thousand to one hundred thousand rubles.
In this case, quite serious sanctions are provided for and they can be applied either upon receipt of a request after the initiation of a criminal case, or during a prosecutorial inspection.
Lawyer Artem Chekotkov explains who and why from the law enforcement agencies has the right to send a request for information to a company and what this may lead to. And most importantly, how to protect yourself from illegal actions of law enforcement agencies?
Business always carries certain risks: financial, price, investment, reputational and many others. The peculiarity of domestic business processes is that they are also associated with criminal-law risks.
A signal that law enforcement agencies have become interested in a business
Recently, the economic crisis has led to the fact that the likelihood of criminal-law risks has increased, and entrepreneurs increasingly find themselves in a situation where their commercial activities can lead to loss of business or even imprisonment.
Such consequences are, of course, the most negative manifestations of operational and investigative measures in relation to business. And they do not occur in every case.
However, even the attention of law enforcement agencies to a company in itself can destabilize its activities for a long time.
A signal indicating that law enforcement agencies have become interested in your business is the receipt by the organization of a request "On the provision of documentation".
Sending a request is one of the most common actions of law enforcement officers. It is the first step in the process of implementing criminal-legal risks.
In this article, we will analyze how law enforcement officers exercise their authority to request documentation from commercial organizations, and also provide a number of practical recommendations that, in our opinion, can significantly reduce the criminal-legal risks of your business.
Massiveness of sending requests for documentation
Thus, the right to send requests is vested in a wide range of entities, from the Accounts Chamber of the Russian Federation to the control agencies of the executive branch (Rospotrebnadzor, Roszdravnadzor, etc.). In turn, the process of bringing to criminal liability is within the competence of only law enforcement agencies that request documentation in connection with the investigation of a criminal case or the verification of a statement of a crime (pre-investigation check).
In this case, businesses encounter the following bodies: the Ministry of Internal Affairs of the Russian Federation, the FSB of the Russian Federation, the Investigative Committee of the Russian Federation. Negative consequences for legal entities may also occur in the event of a prosecutor's inspection, within the framework of which employees of the Russian Prosecutor's Office also have the right to send requests for documentation.
Showing interest in the business, the designated entities first send requests to the company for documentation.
As already noted, this action is the first stage in the process of conducting an inspection (whether police or prosecutorial) and is implemented in the vast majority of cases.
The mass nature of sending requests is due, firstly, to the relative simplicity of its preparation (security officials only need to print a page of text).
Secondly, in the case of a response to a request, law enforcement officers receive a large amount of information, which can subsequently become evidence in a criminal case.
As a result, upon receiving a request, it is necessary to give it a legal assessment and only then make a decision on providing information. In order for the legal analysis of the received request to be complete and effective, first of all, it is necessary to understand what a truly legal and reasonable request is, the receipt of which obliges the company to provide the necessary documentation to law enforcement officers.
Legal nature of a request for documentation
A request for information and documents is a law enforcement act. In other words, by sending a request, law enforcement officers exercise the authority granted to them to obtain the necessary documentation. These powers are enshrined in federal legislation regulating the fundamentals of the activities of individual law enforcement agencies:
- The Ministry of Internal Affairs of the Russian Federation is vested with the specified authority by paragraph 4, part 1, article 13 of the Federal Law "On Police". Police officers have the right to request and receive, free of charge, upon a reasoned request from authorized police officials, information, certificates, documents (their copies), and other necessary information from state and municipal bodies, public associations, organizations, officials and citizens;
- The FSB of the Russian Federation has the right to request information in accordance with paragraph "m" of Article 13 of the Federal Law "On the Federal Security Service". Employees of the FSB of the Russian Federation have the right to receive, free of charge, from enterprises, institutions and organizations, regardless of their form of ownership, information necessary for the performance of the duties assigned to the federal security service;
- The Investigative Committee of the Russian Federation is empowered to request documentation and information in accordance with paragraph 1 of part 3 of Article 7 of the Federal Law "On the Investigative Committee", according to which the investigator has the right to demand from the heads and other officials of bodies, enterprises, institutions and organizations the provision of necessary documents, materials, statistical and other information.
- The Russian Prosecutor's Office has the right to request documentation and information based on Part 1 of Article 22 of the Federal Law "On the Prosecutor's Office", based on which employees of the prosecutor's office, when exercising their powers, may demand that the heads and other officials of bodies, enterprises, institutions and organizations provide the necessary documents, materials, statistical and other information.
Based on these standards, law enforcement officers send requests to organizations to provide documents and information.
But it is important to understand that, like any other law enforcement act that provides for the fulfillment of any obligations, a request for information must have two properties - legality and validity:
- legality - implies that the request for documentation must be based on the provisions of the law that give law enforcement officers the right to request documentation (designated above);
- validity - consists in the fact that the request must indicate specific factual circumstances, the presence of which allows us to conclude that the requested documents and information are really necessary for a comprehensive and complete investigation of a criminal case or conducting an inspection.
These two components together make the security forces’ demand mandatory for execution and, accordingly, entail liability for ignoring the request.
Such interpretation of one's powers, in addition to demonstrating the low level of legal culture of a particular law enforcement officer, also creates room for abuse. Thus, in practice, there are frequent cases when, under the guise of investigating a single criminal case, information is requested that is completely unrelated to the facts being investigated.
Often, during the verification of a report of a crime, law enforcement officers request information on the entire financial and economic activity of an organization for all counterparties, naturally, without providing any grounds for requesting such a significant amount of information.
The consequences of such violations can be expressed, at a minimum, in the destabilization of the activities of a commercial organization.
The most common types of requests
We will demonstrate the most common types of requests, as well as the mistakes that law enforcement officers make when drafting them.
All of them can be grouped by stages of the criminal investigation and separately highlight the prosecutor's check:
- requests sent prior to the initiation of a criminal case;
- requests sent after the initiation of a criminal case;
- requests sent as part of a prosecutor's investigation.
Before initiating a criminal case (pre-investigation check stage)
Experience shows that the bulk of requests to organizations are sent precisely at the pre-investigation check stage.
In order to decide on initiating a criminal case, law enforcement officers need to collect as much information as possible indicating the facts of a crime. And the most convenient way to do this is to send a request for documentation.
In this case, businesses encounter the activities of the already legendary Department for Combating Economic Crimes and Anti-Corruption (OEBiPK) and, less often, with operational units of the FSB of the Russian Federation.
When sending a request to organizations, employees of these units, firstly, must indicate the legal norms that grant them the right to request documentation (clause 4, part 1, article 13 of the Federal Law "On Police" or clause "m" of article 13 of the Federal Law "On the Federal Security Service"), then the request will have the property of legality. In practice, these legal norms are contained in the texts of the request in most cases.
Secondly, and most importantly, the following information must be provided as factual support:
- number and date of the KUSP (book of registration of reports of crimes) - all reports of crimes must be registered and assigned a number. This information indicates that law enforcement officers are actually conducting an investigation, and are not requesting documentation based on some other (sometimes not always legal) motives;
- the request must indicate the facts for which verification activities are being conducted. This information allows one to assess whether the activities of a commercial organization are really related to the subject of verification;
- The text of the request must contain information on how the requested documentation is related to the subject of the audit.
If these components are present simultaneously, the request can be considered truly legal and justified. Unfortunately, in practice, properly justified requests are extremely rare.
While law enforcement officials almost always provide information about the KUSP number and date, an explanation of the facts under investigation and, even more so, how the requested documentation relates to its subject is almost always absent.
In this case, when preparing a response, it is necessary to point out to law enforcement officers the shortcomings of the request with a request to properly justify their demands. Providing documents in such cases can lead to negative consequences, since the motives for sending a request can be very different.
After the initiation of a criminal case
In a situation where a criminal case has already been initiated, requests are not sent to organizations so often.
Criminal proceedings are no longer carried out by operational units, but by investigative units, which have enough other, more effective tools for obtaining information (conducting searches or seizures, for example).
However, often, under the guise of a criminal investigation, documents and information can be requested that are in no way related to the facts under investigation.
Such situations are not always caused by legitimate reasons, and therefore, upon receipt of a request, it is necessary to carefully check it for compliance with the criteria of legality and validity.
As in the case of a pre-investigation check, law enforcement officers must point to legal norms that establish the authority to send requests.
However, in practice, only Part 4 of Article 21 of the Criminal Procedure Code of the Russian Federation is cited as a legal basis, which states that the investigator's demands and requests submitted within the limits of their authority are mandatory for execution by all institutions, enterprises, organizations, officials and citizens.
This justification is incorrect and must be supplemented by a legal norm that grants such authority.
Regarding the actual argumentation of the request for documents and information, it is similar to the pre-investigation check stage and must contain information about the number and date of initiation of the criminal case, the facts under investigation, as well as information about how the requested information is related to the subject of the criminal case.
Prosecutor's inspection
As such, the purpose of a prosecutor's inspection conducted in relation to a commercial organization is not limited to bringing entrepreneurs to criminal liability.
Prosecutor's office employees inspect the company's activities for compliance with certain requirements of current legislation.
However, if the investigation reveals facts indicating that a crime has been committed, the materials of this investigation are sent to law enforcement agencies (police, Investigative Committee of the Russian Federation) to decide on initiating a criminal case.
Thus, an investigation by the prosecutor's office also carries criminal-legal risks for businesses.
The prosecutor's office employees are more careful about the justification of their demands. Most prosecutor's requests have a legal basis, and they also contain information about the facts being investigated.
But, as in all previously noted cases, the requests, as a rule, do not explain how the requested information can be related to the subject of the investigation.
In such a situation, the request cannot be considered motivated and the response to it must be given with a request to properly justify the demands.
Summarizing the description of the most typical situations in which commercial organizations are faced with receiving a request, it is necessary to draw a general conclusion for everyone that, unfortunately, in practice, proper justification of their demands by law enforcement agencies is not widespread.
Of course, providing documents in such cases is not mandatory, but it should also be remembered that the legislation establishes administrative liability for failure to comply with the requirements of law enforcement officers.
Liability for failure to submit documents
The Code of Administrative Offenses establishes two cases when entrepreneurs can be held liable for refusing to submit documents.
Firstly, Article 19.7 of the Code of Administrative Offenses of the Russian Federation "Failure to submit information" provides for liability in the form of:
- warnings,
- administrative fine:
— for legal entities — from three thousand to five thousand rubles.
These sanctions are applied for failure to submit documents if the request is received by the company at the pre-investigation stage (before the initiation of a criminal case).
Secondly, Article 17.7 of the Code of Administrative Offenses of the Russian Federation "Failure to comply with the legal requirements of the prosecutor, investigator, inquiry officer or official conducting proceedings on an administrative offense" provides for liability in the form of:
- administrative fine:
— for legal entities — from fifty thousand to one hundred thousand rubles.
- administrative suspension of activities for up to ninety days.
In this case, quite serious sanctions are provided for and they can be applied either upon receipt of a request after the initiation of a criminal case, or during a prosecutorial inspection.
