Participation of the BOC representative in searches is unrealistic, - UNBA Committee

To protect businesses from law enforcement abuses during searches, the government wants to introduce a business ombudsman into the criminal process. However, the feasibility of this good intention is highly questionable.

The UNBA Committee on Criminal Law and Procedure generally welcomed the draft Law No. 10440 of 29.01.2024 «On Amendments to the Criminal Procedure Code of Ukraine and Other Legislative Acts to Improve the Work of the Bureau of Economic Security of Ukraine». The document deserves support, however, some of its provisions need to be finalized.

In particular, the draft law proposes that investigative actions such as search of property and temporary access to things and documents (Articles 165 and 236 of the CPC), if carried out against a business entity, should be carried out in the presence of a representative of the Business Ombudsman Council (BOC). This, according to the authors of the initiative, should protect business from violations by law enforcement. Investigators and prosecutors will have to notify the BOC of such investigative actions 4 hours before they begin. The BOC representative will enjoy the rights and perform the duties provided for by this CCP for a representative of a legal entity.  At the same time, the BOC representative's failure to appear will not prevent the execution of a search warrant or temporary access to things and documents.

The UNBA Committee expressed doubts about the possibility of implementing these norms in practice, since according to the BOC's official website, the institution's team consists of only 32 specialists.

Special attention is drawn to the limited (compared to lawyers) powers of the BOC representative. This cannot guarantee the observance of the rights of business entities. The mere fact that a representative of the Council is involved will in no way stop the pre-trial investigation body from committing possible illegal actions.

In addition, the BOC was established by the Resolution of the Cabinet of Ministers of Ukraine No. 691 dated November 26, 2014. It also defines the tasks, functions and powers of the permanent advisory body of the Cabinet of Ministers. This makes the provisions of the CCP dependent on a bylaw, which is illogical and may be subject to manipulation.

On February 21, the Verkhovna Rada Committee on Law Enforcement supported draft law No. 10440, so the comments and suggestions made by the UNBA can be used to finalize the draft law if it is approved by the Parliament as a basis.

For reference. According to the Regulations approved by the Cabinet of Ministers of Ukraine No. 691 dated 26.11.2014, the Business Ombudsman Council was established to promote transparency of the activities of public authorities and business entities under their management, prevent corruption and/or other violations of the legitimate interests of business entities.

The main tasks of the BOC are:

• receiving and reviewing complaints from business entities against actions or inaction, including decisions of state and local government authorities, business entities under their management, and their officials;
• providing recommendations to state authorities and local self-government bodies on ensuring the formation and implementation of state policy in the field of entrepreneurial activity in order to improve it and improve the conditions for conducting entrepreneurial activity, prevent corruption and/or other violations of the legitimate interests of business entities;
• providing recommendations to state authorities and local self-government bodies, business entities under their management, on improving and optimizing procedures and/or the way they exercise their powers, conduct business or other activities.

The Council is composed of the Business Ombudsman, two deputies and secretariat staff, which the BOC may hire according to its needs.