Searches in the company. Checklist how to protect business

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Law enforcement agencies continue to use searches as a tool of systemic pressure on businesses.

This is confirmed by recent high-profile events in the IT community. There is nothing easier than seizing a laptop, server or phone and in this way blocking the company’s work for an indefinite period.

The IT sphere is most sensitive to such actions by law enforcement officers. The activity of IT companies directly depends on technical means and information carriers, which are quite easily and, unfortunately, often removed.

Of course, such blocking of business operations is unacceptable. The legislator has tried several times to change the procedure for conducting searches to protect the interests of entrepreneurs.

In particular, in 2018, laws were initiated, which the media called “Show-stopping masks”.

As a result, positive points were introduced: video recording of the search, permission to search the lawyer, prohibition of seizing information carriers (with some exceptions), prohibition of repeated requests to search the same premises.

However, over time, these changes were leveled off due to the practice of their application. Video recording by law enforcement officers deliberately did not record violations, information carriers were seized without any restrictions.

Although lawyers were allowed, they were often restricted in their actions. Moreover, physical force was used against them.

Despite the legislator’s attempts to protect business, the role of the lawyer in this process remains decisive.

Practical recommendations of IT business

Any business, and especially in the field of IT, should remember a certain set of legal actions that, despite the stressful situation, must be performed during the search.

It is they who will help to neutralize the negative consequences in the future.

The search is carried out on the basis of the decision of the investigating judge at the request of the investigator or the prosecutor, except for exceptional cases when entry into the premises can be carried out without the prior permission of the investigating judge.

The decision to conduct a search entitles the investigator, the prosecutor, to enter a person’s property only once.

In the event that the court refuses to grant a permit to conduct a search, the investigator, the prosecutor may not re-apply with such a request on the same grounds.

What to do when they have already come to you with a decision to conduct a search.

1. It is necessary even before opening the door call a lawyer and inform you about the investigation.

At the same time, the search can be started before the arrival of the lawyer. However, regardless of the time of his arrival, the investigator must allow the lawyer to conduct the search.

2. Do not resistas in this case physical impact may be applied to property and persons who obstruct.

3. You have check the text of the resolution investigating judge on the subject: (1) the correctness of the search address, (2) what exactly is to be searched for, (3) validity period of the decision and (4) who exactly was given permission to conduct the search.

4. It is necessary to check and rewrite the credentials of the investigator and everyone accompanying him. Make sure that permission is given to the specified investigator to conduct a search.

If at this stage inconsistencies are found in the decision of the investigating judge, and the investigator will try to continue the search, you should call the police by phone 102.

5. In no case do not allow a personal search (search of the person) before the arrival of the lawyer.

Including, not to take anything out of your pockets at the request of the investigator and not to give him anything.

Because it is so easy to get rid of your own mobile phone, the removal of which will be reflected in the protocol as a phone that was lying, for example, on the desk of a manager or another person.

6. Preferably conduct a video shoot investigative action, but it should be borne in mind that the device on which you record the progress of the search can also be seized.

7. Trace record all violationswhich were committed during the search.

The most frequent violations committed by the investigator: (1) seizure of mobile phones and data carriers, if they were provided for inspection of information copying, (2) seizing things during a search of a person without following the relevant procedure, (3) seizure of funds and personal property unrelated to the crime, (4) the actual search is not conducted by an investigator but by an operational officer, (5) lack of witnesses at the place of the search, (6) barring a lawyer or restricting his rights.

It is necessary to be prepared that the investigator may seize any thing he deems necessary during the search.

But following the above recommendations will help either to avoid the seizure of such things, or to return them by challenging the actions of the investigator in court.

The prospect of improving the situation

After the last high-profile searches in IT companies, there weredraft law No. 9211, which has already received the “old new name” Masks-show stop, was registered.

According to the explanatory note, the proposed changes will reduce the pressure and excessive interference of law enforcement agencies in the activities of Ukrainian businesses, as well as stimulate the development of the digital economy.

For example, it is envisaged to provide the owner with the opportunity to copy information from electronic noses before their removal, to provide the possibility of unhindered video recording of the search by the owner of the premises or his lawyer, and to provide all seized items with the status of temporarily seized.

Of course, such initiatives of the legislator are positive. Moreover, they resonate with our position of protection, which we are already implementing through the formation of appropriate law enforcement practice.

We will continue to protect the interests of our clients regardless of the implementation of the positive initiatives of the legislator.

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