Is it time to change approaches to bringing businesses to criminal liability?
The institution of criminal liability of legal entities, introduced in 2014, is ineffective. For example, the list of sanctions that can be imposed on businesses is quite limited and unbalanced.
For these reasons, in order to fundamentally change the approach to holding a legal entity liable for committing a criminal offense on its behalf or in its interests, a group of MPs registered in the Parliament the draft Law No. 11443 dated 25.07.2024 «On Amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine and Other Legislative Acts of Ukraine on Bringing Legal Entities Liability for Corruption Criminal Offenses in Line with International Standards».
The document proposes to provide for grounds for applying criminal law measures to a legal entity regardless of bringing an individual to justice, expanding the list of criminal law measures and increasing the amount of a fine that may be applied to a legal entity, and the possibility of applying special confiscation based on a court order to apply criminal law measures.
It is also envisaged that the legal entity will be subject to additional (non-financial) criminal law measures. It is a rather broad list of prohibitions on activities for a certain period, namely:
1) to participate in public procurement;
2) to use a license;
3) participate in the privatization of state and municipal property;
4) participate in the lease of state and municipal property (including the extension of the lease agreement);
5) obtain and extend a special permit for subsoil use (including suspension of a special permit for subsoil use);
6) participate in the bodies of social tripartite dialog;
7) purchase bonds of internal state loans of Ukraine;
8) create and participate in the work of self-regulatory organizations;
9) to provide and receive advertising;
10) to carry out sponsorship;
11) participate in public-private partnerships;
12) participate in joint ventures.
In addition, non-financial measures of a criminal law nature will include temporary restrictions on the following rights and benefits:
1) to receive any benefits and assets from the state and the community;
2) to attract, use, and utilize funds from international technical projects and international financial transactions;
3) to receive state aid by business entities (to be a recipient of state aid);
4) acquire the status of a resident of Diia City;
5) receive state and other financial support for export activities.
The Ukrainian National Bar Association's Committee on Anti-Corruption Policy and Compliance, having analyzed the draft, concluded that such a legislative initiative could be widely applied to an unlimited number of cases and business entities, including those of good standing. As a result, it will increase the pressure on business many times over.
In today's reality, when business is already struggling, implementing the provisions of the law as drafted will inevitably lead to a freeze in business activity with all the negative consequences that this entails. And these potentially negative risks outweigh the benefits of implementing the proposed rules by several times.
Therefore, the UNBA concludes, it is advisable to postpone the adoption of the draft law for another time.
Popular news
Guarantees of the practice of law
Independent oversight is necessary before using CISA materials against an advocate – Lidiya Izovitova
Before the prosecution uses information obtained during covert investigative actions and related to an advocate’s activities, independent procedural oversight must be conducted. It is necessary to determine whether such information is covered by attorney-client privilege and whether it may be disclosed.
Self-government
Efforts to develop advocacy must be brought to fruition — A. Misyats
The Ukrainian advocacy profession is currently going through a critical phase. Amid the war, it must ensure the continuity of legal aid, defend the independence of the profession, and improve qualification and disciplinary procedures in accordance with European standards. The work that has been started must be brought to a practical conclusion.
Support
Protecting the legal profession, cybersecurity and support for advocates: common themes for the IBA and the UNBA
On September 18, a working meeting was held at the office of the Ukrainian National Bar Association with Executive Director of the International Bar Association (IBA) Mark Ellis. The parties discussed the Ukrainian advocacy profession’s participation in European legal processes, the protection of the UNBA’s digital infrastructure, psychological support for advocates and future areas of cooperation.
Educational events
Tax residency of Ukrainians abroad: what matters
The determination of tax residency for Ukrainians who have been living abroad for an extended period depends on the combination of their personal and economic ties to each country. The established status determines the procedure for reporting income, paying taxes and fulfilling CFC reporting obligations.
War
Are Europe's advocacy associations prepared for a potential war? V. Gvozdiy shared lessons from the Ukrainian experience
The continuity of the bar’s self-governance, the protection of professional registries and archives, as well as equal guarantees of employment for advocates, judges, and prosecutors must be enshrined in advance in legislation in the event of war or another emergency.
Legal defence of military personnel
Payments to military personnel require clear and uniform criteria — UNBA Committee
The vagueness of terms in subordinate regulatory acts leads to differing interpretations of the grounds for paying additional compensation to military personnel. The UNBA has proposed harmonizing these acts and establishing transparent criteria for the allocation of funds.
Discussion
Finding them isn't enough: issues surrounding the seizure and return of crypto assets
The technical structure of transactions does not automatically identify the person who controlled the crypto wallet, and courts have reached differing conclusions on whether a digital asset can be seized as physical evidence. So how can one prove ownership of such assets, enforce court orders, and return funds to victims?
Legislation
The UNBA will prepare guidelines on lawyers' requests
By the end of 2026, the UNBA Committee on the prevention of administrative offenses committed against advocates will develop guidelines on drafting advocate inquiries and responding to refusals to provide information. There are also plans to standardize the practice of applying Article 212-3 of the Code of Administrative Offenses.
Publications
Vasyl Kolishnyi, «Law and Business» Supporting mental health should become part of the professional culture of the Bar, - H. Udovenko
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection