In most cases, entrepreneurs are faced with Art. 159 of the Criminal Code of the Russian Federation (fraud). And if in 2021, according to the General Prosecutor's Office of the Russian Federation, the number of pre-investigation checks under this article was registered at 215,000, then in 2021 it increased to 257,000. The current year, according to preliminary forecasts, will show another increase in the indicator - to 323 000.
Thus, over two years, the increase in the number of fraud checks will be almost 50%.
At the conference “Reducing tax risks: trends 2020”, organized by SKB Kontur, lawyer of the Moscow Bar “Knyazev and Partners” Alexey Serdyuk answered the following questions:
- In what cases are entrepreneurs presented with criminal claims?
- How a criminal case is initiated
- What mistakes do entrepreneurs make?
- How to minimize risks
In what cases are entrepreneurs presented with criminal claims?
To make a criminal claim there must be two components:
- Grounds for filing claims. Attention is drawn to either a scheme in economic activity, which can be regarded by law enforcement officers as containing criminal legal risks, or a transaction.
- Bringing information about facts to the attention of law enforcement officers. They must begin conducting pre-investigation checks on these facts.
All schemes to which questions may arise are divided into 3 large groups:
- Tax schemes
This, in particular, includes cooperation with fly-by-night companies. After 2014, the nature of the work of such companies has changed greatly. Nowadays they often have a full-time staff and even submit minimal reporting. Clearly expressed one-day companies with nominal directors and mass registration addresses are becoming increasingly rare.
Nevertheless, both security forces and employees of the Federal Tax Service have already learned to quickly identify such phantom businesses. According to official data, measures taken in 2021 by Rosfinmonitoring together with the Central Bank and law enforcement agencies made it possible to reduce the volume of questionable financial transactions by more than 40%. The number of shell companies dropped to 120,000 for the first time.
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- Foreign trade schemes
This is the withdrawal of funds from the Russian Federation, import schemes, currency schemes, import of products when prices are reduced).
- Schemes in the field of public procurement
These include cartel collusion, collusion between the supplier and the customer, as well as situations where the supplier is controlled by a representative of the state customer.
An example of dangerous foreign trade schemes
Let's say there is a seller who sells goods on the territory of the Russian Federation, he actually builds communications with the manufacturer: employees of the purchasing department send orders to the manufacturer, however, if you look at the documents, these products are purchased from a Russian company.
The scheme involves a nominal importer, who imported goods according to documents, and a fictitious seller - a non-resident who sells products on the territory of the Russian Federation. Identification of such a scheme may lead to claims under Art. 194 of the Criminal Code of the Russian Federation (evasion of customs duties).
Today, the minimum threshold from which a business can make a claim under this article is failure to pay customs duties to the budget in an amount exceeding 2 million rubles.
If, according to law enforcement officers, this scheme was carried out by an organized group, then such actions can be qualified under Part 4 of Art. 194 of the Criminal Code of the Russian Federation, it provides for punishment in the form of imprisonment for a term of 7 to 12 years. With such qualifications, there is a high risk of punishment in the form of actual imprisonment.
Sometimes an organized group of persons refers to the activities of a company (or even a group of companies) that has employees occupying certain positions and performing certain roles.
If the selling company transfers funds to a non-resident and it subsequently turns out that the transaction was not executed by a foreign counterparty, and it is established that the company's management knew that the transaction was not planned for execution, then this situation will entail the risk of filing claims under Art. 193. 1 of the Criminal Code of the Russian Federation. According to this article, carrying out currency transactions using forged documents provides for serious punishment: if the transactions exceeded the threshold of 45 million rubles, then these actions are qualified under Part 2 of Art. 193.1 of the Criminal Code of the Russian Federation and imprisonment for a term of 5 to 10 years.
An example of collusion between a supplier and a customer
Anyone who works with the budget may encounter an attempt by law enforcement to check the deal. And this happens often. Most often, security forces pay attention to the use of the following schemes:
- Collusion between the customer and the supplier Often the supplier is directly involved in the preparation of technical specifications, can assist in the formation of the initial maximum contract price (IMCP) and advise the customer.
- The transaction is carried out by a supplier or company that is directly related to the representative of the government customer, that is, affiliated with him - directly or indirectly, through relatives, for example.
If in these two cases the security forces establish the fact of overestimation of costs or volumes, when the contract includes work that was not planned for execution, or they discover the fact of improper fulfillment of obligations, the work will be accepted and paid for (this is relevant for the end of the year, when the budget is being disbursed) , then all these situations of “informal” relations with customers may lead to claims under Part 4 of Art. 159 of the Criminal Code of the Russian Federation. In this case, it is necessary to go beyond the amount of 1 million rubles.
This article provides for punishment in the form of imprisonment for a term of up to 10 years. If you look at the overall structure of punishments under this article for last year, which the Judicial Department of the RF Armed Forces provides on its portal, then in 55% of cases real punishments were imposed.
Consequences of working with ephemera
Tax optimization is also fraught with danger. If an arrears in an amount exceeding 15 million rubles are revealed, entrepreneurs bear the risk of claims being presented to them under Art. 199 of the Criminal Code of the Russian Federation (tax evasion).
Today, such compositions are authorized to identify not only tax officials, who are subsequently obliged in accordance with Art. 32 of the Tax Code of the Russian Federation, transfer this information to the security forces, if the company has not paid the arrears, but also to law enforcement officers. This article provides for imprisonment for up to 6 years.
If we turn to the structure of punishment, then last year in 13% of cases, as a result of their consideration in court, sentences were imposed in the form of actual imprisonment. And in 2021, 20% of entrepreneurs received real deadlines.
In addition, persons who may become defendants in the case also bear financial risks. Arrears and penalties incurred in connection with the company's activities can be transferred to specific individuals who are suspects and subsequently accused in a criminal case.
This position on the possibility of collecting tax arrears from specific individuals was confirmed by the Constitutional Court in 2017 (Resolution of the Constitutional Court of the Russian Federation of December 8, 2017 No. 39-P) and by the Supreme Court in 2019 (Resolution of the Plenum of the Supreme Court of the Russian Federation of November 26, 2019 No. 48). The only condition that makes it possible to shift financial obligations from companies to specific defendants is the inability to collect arrears and penalties from the company itself.
The plenum of the RF Armed Forces specified this point. One of the criteria that may provide grounds for collecting arrears from individuals is a situation where the market value of assets is insufficient to cover liabilities. There are often situations when there are actual beneficiaries (owners) and there is an operating director, and it is the latter who ultimately bears the burden of the company’s obligations.
This year, the Presidential Commissioner for the Protection of the Rights of Entrepreneurs, Boris Titov, provided specific figures showing what the passion for optimization entails for business. Regardless of whether a verdict was ultimately reached or not, in 40% of cases the business is completely destroyed. In another 44% – partially.
This is partly explained by the length of the criminal prosecution process: on average, the investigation of a case and its consideration in court takes from a year to 6 years. Not every company has enough financial reserves to function as usual all this time.
Methodological recommendations for conducting legal proceedings
Protocol No. 5 with additional dated September 28, 2016 (Minutes No. 7)
I. General provisions
This document was developed by the Federal Chamber of Lawyers of the Russian Federation (hereinafter referred to as the Chamber) in order to provide methodological assistance to lawyers in the formation of legal proceedings when carrying out defense or representation. It contains recommendations for the preparation and conduct of legal proceedings in criminal and civil cases. Due to the variety of forms of legal assistance provided by lawyers - conducting cases in other types of legal proceedings, representation in state and local government bodies, legal support of business activities - these recommendations are not intended to cover all areas of law and cannot be exhaustive. If a lawyer conducts proceedings in other areas of law, these recommendations are to be applied by analogy.
In accordance with the Federal Law “On Advocacy and the Bar in the Russian Federation” (Clause 1, Clause 1, Article 7) and the Code of Professional Ethics for Lawyers (Clause 1, Article,
a lawyer is obliged to honestly, reasonably, conscientiously, and skillfully fulfill his duties professional duties For failure to fulfill his duties, a lawyer may be subject to disciplinary liability (Clause 2, Article 7 of the Federal Law “On Advocacy and the Bar in the Russian Federation”).
Conscientious and effective performance of professional duties by a lawyer is impossible without thorough preparation for the conduct of the case, including without studying the case materials [1] and keeping records. All materials related to the case must be kept by the lawyer in a special proceeding, conventionally called a lawyer’s file.
The current legislation on the legal profession does not contain a direct requirement for the mandatory conduct of legal proceedings. However, the need to maintain it follows from the content of paragraph 3 of Art. 8 of the Federal Law “On Advocacy and the Bar in the Russian Federation”, according to which information, objects and documents obtained during operational search activities or investigative actions can be used as evidence of prosecution only in cases where they are not included in proceedings of a lawyer in the affairs of his clients.
Conducting legal proceedings is also necessary within the meaning of paragraph 9 of Art. 6 of the Code of Professional Ethics for Lawyers.
Conducting legal proceedings is carried out for the purpose of organizing and systematizing information in the most convenient way for the lawyer in the process of providing legal assistance to the client, facilitating work with information, and effectively using the collected data in forming a position on the case and its implementation. Properly drawn up and executed legal proceedings can assist a lawyer in other similar cases, for example, in analyzing regulatory material and judicial practice, developing a position on the case, methods of proof, etc.
In addition, legal proceedings are the most effective confirmation of the fact, scope and quality of the lawyer’s provision of legal assistance to the client, and can also serve as evidence in protecting the lawyer from the client’s unfounded claims to the quality of the lawyer’s work and in disputes about the amount of fees for legal assistance provided.
Advocate proceedings are one of the ways to maintain attorney-client privilege; the information and materials contained therein cannot be used as evidence for prosecution.
The obligation to conduct legal proceedings is determined by the need to present an orderly picture of the activities carried out by the lawyer. The absence of legal proceedings in cases where there is a need to assess the quality of a lawyer’s work is one of the grounds for recognizing his work as unfair.
The Code of Professional Ethics for Lawyers (clause 9 of Article 6) obliges the lawyer, when conducting proceedings, to comply with the requirements according to which the materials included in the lawyer’s proceedings in the case, as well as correspondence between the lawyer and the client, must be clearly and unambiguously designated as belonging to lawyer or emanating from him. The lawyer must conduct office work separately from the documents belonging to the principal.
In order to avoid conflicts and disputes regarding the possible loss of original documents, lawyers are recommended, if possible, not to keep the original documents provided to clients, but to make copies of them and place them in legal proceedings. It is advisable to request the original documents from the principal as necessary when they must be presented to the court or other authorities. It is also recommended to record in writing the transfer of such documents from the principal to the lawyer and vice versa.
Each lawyer formalizes legal proceedings from the date of acceptance of the instruction from the principal.
Materials from legal proceedings are stored in a folder(s) or file(s) specially adapted for these purposes.
The front side of the lawyer's proceedings must contain the following data: - name of the lawyer's formation; - last name and first name of the lawyer, his registration number in the register; — Full name of the protected (represented) person; — number of the agreement on the provision of legal assistance and the date of its preparation; — date of acceptance of the order; — number of the lawyer’s order and the date of its issue; - name of the body in charge of which the case is pending; — criminal legal qualification of the act or the nature of the claims.
On the front side of the legal proceedings, it is recommended to have the following stamp: “Advocate proceedings - the information contained therein constitutes a legally protected attorney-client secret and cannot be used as evidence for the prosecution.”
Compliance with this requirement is necessary to clearly indicate that the materials (information) included in legal proceedings are subject to attorney-client privilege[2].
On the inside of the folder there should be a list of materials contained in production (inventory), as well as in chronological order the actions to carry out the assignment and their results.
It is recommended that legal proceedings be conducted on paper. As practice shows, for working with case materials in a court hearing, paper-based proceedings are the most convenient. Along with this, it is allowed to conduct legal proceedings on digital media. This may be more appropriate in cases where the case materials are large, making it impossible or problematic to store such a number of documents and transport them to the court or other authorities on paper.
Lawyer proceedings should be kept for at least three years from the date of fulfillment of the terms of the agreement. The procedure for storing legal proceedings is determined by the lawyer or the legal entity in which the lawyer carries out his activities.
When drawing up these recommendations, we took into account many years of experience in legal practice in developing general approaches to professional activities. The methodological recommendations combine both the basic rules for conducting legal proceedings and recommendations for ensuring attorney-client privilege, which every lawyer must follow when working with materials from legal proceedings.
The Bar Chambers of the constituent entities of the Russian Federation can either accept these recommendations on the conduct of legal proceedings, or develop their own recommendations on their basis.
II. Contents of legal proceedings in criminal cases
One of the most important types of legal assistance provided by a lawyer is the protection of the rights and interests of a person in cases being processed by the bodies of inquiry, preliminary investigation and court. Protecting the rights and interests of a person in these bodies requires from a lawyer not only deep theoretical knowledge, but also professional skill in their implementation.
To provide qualified legal assistance in such cases, a lawyer must carefully familiarize himself with the materials of the criminal case at the end of the preliminary investigation or in court before the start of the trial, make appropriate extracts, make copies of procedural documents, and make notes that are important for forming the defense position.
Copies of the criminal case materials, extracts from the materials and all other records of the lawyer on a specific case are recommended to be drawn up and stored in the form of lawyer proceedings in accordance with the above recommendations.
In legal proceedings, it is recommended to keep copies or originals of procedural documents submitted to investigative or judicial authorities, copies of other documents submitted or extracts from them, copies of investigator decisions, court decisions and rulings, copies of complaints against investigator or court decisions, abstracts of speeches in court hearings, in including in the cassation instance, copies of the rulings of the cassation instance.
In legal proceedings in criminal cases there must be: - a copy of the decision to initiate a criminal case or an extract from it; — a copy of the decision to bring him as an accused; - copies of the protocols of interrogation of the client as a suspect and accused or extracts from them; - if a person is in custody - a copy of the decision on the selection of a preventive measure, on the extension of the period of detention, complaints about these decisions and responses (rulings) of the courts; — copies of all petitions filed in the case and responses to them; - a copy of the indictment.
With the participation of a lawyer in investigative actions, it is recommended to record the testimony of the accused, persons participating in the confrontation, identification, etc. With the permission of the person conducting the interrogation, it is advisable to make photocopies or photocopies of procedural documents.
It is also recommended to reflect in the lawyer's proceedings the dates of meetings with the client, their duration, the issues that were discussed and the issues that remain to be clarified in order to determine the position of the defense.
In cases in which two or more persons are brought to criminal responsibility, it is recommended, if possible, to also obtain copies of decisions to bring other accused as defendants and protocols of testimony of these persons. This will provide a broader picture of the position of both the prosecution and the other accused.
For the purpose of ease of use of materials, depending on the nature of the criminal case and its volume, it is recommended to group the materials of legal proceedings in the following order: a) according to the location of the materials in the criminal case; b) for individuals; c) by episode.
In a complex, multi-episode criminal case, it is advisable to group materials by episode.
It is recommended that all comments that the lawyer has while studying the case materials are written down and stored in the lawyer’s office. It is also recommended to record the sheets and volumes of the criminal case in order to be able to quickly find the necessary materials and make links to them in the future.
In cases where, due to the nature of the case, it becomes necessary to study additional normative material, special or scientific literature, and judicial practice, it is advisable for extracts from this material that are important for the defense to also be placed in legal proceedings.
At the court hearing, the lawyer is recommended to keep a brief personal protocol record, which reflects all the circumstances that are important for the defense: the testimony of the defendants and witnesses, the questions asked of them by the participants in the process and their answers to the questions, the testimony of experts and specialists in court, important statements and petitions of the participants process, etc. It is also recommended to record the proceedings on a voice recorder, especially in complex criminal cases with a large amount of evidence. Audio recordings of court hearings will help not only to correctly structure a speech in defense of the client, but also to confirm the correctness and validity of comments on the record of the court hearing.
It is recommended to think through in advance and prepare in writing the most significant questions for defendants, witnesses, experts, and specialists and then attach them to the materials of the lawyer’s proceedings.
Copies of written petitions must be kept in the legal proceedings, and appropriate records must be made about the oral petitions submitted and the documents submitted to the court.
After the court has prepared the minutes of the meeting, lawyers are advised to carefully read it, obtain a copy of it, or make extracts indicating the sheets of the case.
At the end of the case in the court of first instance, the lawyer's proceedings, as a rule, should contain the following procedural documents: - a copy of the verdict; — a copy of the minutes of the court session or an extract from it, a copy of comments on the minutes of the court session (if any), a copy of the court decision to accept comments or reject them; — a copy of the prosecutor’s cassation submission or the victim’s complaint and the lawyer’s objection to them; — a copy of the cassation (appeal) complaint.
In legal proceedings, in addition to those mentioned above, it is also recommended to have (in copies or extracts) the following materials of the criminal case: - a decision on the detention of a suspect, on the selection and change of a preventive measure, decisions on the appointment of examinations (with a list of questions put to the experts for resolution), conclusions examinations; — protocols of searches and inventory of property; documents confirming the seizure of valuables; — protocols of interrogations of the client, other accused (defendants), victims, witnesses and confrontations; — protocols of examination or inspection of documents, material evidence, inspection of the area, reproduction of the situation and circumstances of the event; - characteristics, criminal record certificates, other documents related to the personality of the defendant (certificates of illness, family composition, etc.).
When forming legal proceedings, it is recommended to observe the following technical rules: make notes only on one side of the sheet, leave large margins for notes, which can then be used in court.
In extracts from the case materials, indicate information about the volume and pages of the criminal case from which they are made, the date the document was compiled, and its brief content. If there are any defects or procedural violations in the documents (lack of necessary details, dates, names, etc.), this should also be reflected in the lawyer’s proceedings.
In addition to extracts from the materials of the investigative and judicial case, it is recommended to compile and store in the lawyer’s proceedings reference tables and diagrams that help the lawyer navigate the case and his proceedings. They are especially necessary for complex, multi-episode, multi-volume cases.[3]
In legal proceedings, it is recommended to store preparation material for a defense speech. It should be remembered that there is no case on which one can make a speech without preliminary preparation, drawing up theses, or planning a short or full text of the defense lawyer’s speech.
In these guidelines, it is impossible to accurately determine which type of speech preparation should be preferred. However, in any case, the text of the defense speech (in theses or in full) should be kept in the lawyer's proceedings.
III. Contents of legal proceedings in civil cases
It is recommended to form legal proceedings in civil cases from the moment the order is accepted to represent the interests of the principal in court. However, taking into account the fact that the determination of the legal position on a case by a lawyer begins with the client (citizen, representative of a legal entity) requesting legal advice, all negotiations and meetings between the lawyer and the client, including the meeting when the client initially contacts the lawyer, must be reflected in the proceedings.
When accepting an assignment in a civil case, the lawyer should conduct a preliminary analysis of the client’s wishes for compliance with the requirements of the current legislation and, based on the results of the meeting and familiarization with the materials provided by the client, offer the client a legal position on the case, as well as warn the client about the expected risks in the further development of the case. These actions of the lawyer are aimed at maintaining the legitimate interest of the client - the opportunity to make a final decision on working with a lawyer on the case or on termination of work.
In legal proceedings, it is recommended to have copies of written documents drawn up by the lawyer (requests, petitions, claims, responses, objections to claims, etc.), as well as copies of the responses received to them.
To avoid loss, a lawyer is advised to avoid storing original documents transferred by the principal in his own person or in the lawyer’s office. In legal proceedings, it is advisable to have copies of these documents and leave the originals with the principal. It should be taken into account, however, that when considering a civil case in courts of general jurisdiction or in arbitration courts, the study of evidence in the case implies an obligation for the parties to provide the originals of the necessary documents upon the request of the court.
In this case, if it is impossible for the principal to be directly present at court hearings, the obligation to provide original documents during the consideration of the case rests with the lawyer.
In this regard, the lawyer is recommended to obtain original documents from the principal for the required time and store them in the lawyer’s proceedings (since the lawyer’s proceedings ensure the preservation of attorney-client privilege), and when the need for the original documents no longer exists, return them to the client.
When transferring original documents to a lawyer, as well as when subsequently returning them to the principal, the lawyer is recommended to have in production a list of them and a note about their receipt and then about their return. The presence of such records and receipts will help avoid possible conflicts between the lawyer and the client.
The lawyer has the right to determine the order of arrangement of materials in legal proceedings at his own discretion. However, in a number of cases, for example, when a claim, including a counterclaim, contains several claims, for convenience it is advisable to group the materials in production for each claim separately (in the form of files or reflecting this division in sheet numbering).
It is recommended to keep the text of legal norms, judicial precedents, comments from specialists, and other materials to which the lawyer refers to in support of his position on the case, as well as theses and drafts of the lawyer’s speeches in court.
Proper execution by a lawyer of an accepted assignment to conduct a case in court involves not only the preparation of procedural documents (statements of claim, appeals or cassation complaints against judicial acts, reviews and objections, statements and petitions, other documents provided for by civil and arbitration procedural legislation), but also constant participation lawyer during the trial.
In this regard, the lawyer's proceedings must contain: notes on familiarization with the minutes of the court session, a copy of the protocol or an extract from it, copies of comments on the minutes of the court session (if any), copies of court rulings on the acceptance of comments or their rejection, copies of the cassation ( appeal) complaint or objections to it.
In cases where the client is satisfied with the court decision, it is recommended that this be reflected in the legal proceedings.
IV. On the observance of attorney-client privilege when conducting legal proceedings
Ensuring the constitutional right of a citizen of the Russian Federation to qualified legal assistance is impossible without observing attorney-client privilege.
Article 8 of the Federal Law “On Advocacy and the Bar in the Russian Federation” extends the regime of attorney-client privilege to any information related to the provision of legal assistance by a lawyer to his client.
In this regard, all materials containing such information contain attorney-client privilege.
Below is a list of information and materials stored in legal proceedings, in respect of which the regime of attorney-client privilege must be observed [4] - records and documents containing information about the fact that the client contacted a lawyer, about the nature and content of the legal assistance provided to him; - all evidence and materials collected by the lawyer during preparation for the case; - records of any information communicated to the lawyer from personal, family, intimate, public, official, economic and other areas of the principal’s activity, which became known to the lawyer in the process of providing legal assistance; - other information received by the lawyer from the client, and any documents, other written, audio and video materials, information on electronic media, if they are part of the proceedings; - the content of legal advice contained in one form or another in legal proceedings, given directly to the client or intended for him; - records and information obtained by a lawyer as a result of his participation in closed court hearings, with the exception of the content of judicial acts that are subject to public disclosure; — records and documents containing information about the principal’s membership in formal and informal professional, religious, public and other associations of citizens; - records with any other information related to the provision of legal assistance, the distribution of which may harm the legally protected rights and interests of the principal, lawyer and other persons.
In cases where materials, items, and other information related to the case, due to their volume, do not fit in the “Advocacy proceedings” folder, it is recommended to mark them with the appropriate inscriptions (stickers) “Advocacy proceedings of the lawyer (full name) , (reg. No._____ in the register of lawyers ____________________)" and stored in safes, archival cabinets or special boxes bearing the inscription: "The box (safe, cabinet) contains information constituting attorney-client privilege protected by law."
When conducting parallel legal proceedings in electronic form (including text files of documents, scanned copies or digital photocopies of documents), the following requirements must be met: - be sure to have a backup copy of the materials; - each computer should be equipped with a firmly held sticker containing the inscription: “Computer of a lawyer (full name), (reg. No._____ in the register of lawyers. Contains legal proceedings on the affairs of his clients"; - exclude access to electronic legal proceedings by unauthorized persons by using, if necessary, information security means (software - setting periodically changed passwords, using electronic cryptography programs; hardware - accessing information on a personal computer using a fingerprint scanner, systematically testing the computer to identify attempts at illegal entry); - pay special attention to local network, as well as receiving and sending information via the Internet, that is, monitoring the security of e-mail; - the computer in which all information created in legal education is stored should be placed in a separate room with special access - protection from intrusion, and the most important information should be stored on the server in encrypted form; — take measures to exclude the possibility of access to the contents of the computers on which lawyers work from all other persons (information protection can be ensured through special encryption programs, for example PGP (Pretty Good Privacy), which is available on the website www.pgp .com).
When working with materials from legal proceedings, you should promptly destroy documents and information that do not need to be stored (remove files from the computer, including from the “recycle bin”, destroy papers in a special device).
Lawyer proceedings in relation to each principal should be kept separately, and if necessary (including for convenience), lawyer proceedings for each of several cases of one client should be kept separately.
In order for correspondence emanating from a lawyer within the framework of legal proceedings to be unambiguously identified as a lawyer’s mail, legal letterhead should be used; if the document is not drawn up on letterhead, be sure to indicate that this document was drawn up by a lawyer.
When working with diaries and organizers (both paper and electronic), it is recommended to be careful not to transfer into them information from legal proceedings related to the subject (content) of attorney-client privilege.
After fulfilling the terms of the agreement with the principal and completing work with the case materials, the lawyer's proceedings are subject to placement in the archive of the lawyer's education, the location of which and the procedure for storing the materials of the lawyer's proceedings are determined taking into account the requirements for maintaining attorney-client privilege.
All employees of legal professions, including paralegals, legal trainees, who have access to legal proceedings, must be warned in writing about the inadmissibility of disclosing attorney-client privilege and instructed how to organize work at their workplace in order to prevent information from reaching unauthorized persons.
When taking measures to ensure compliance with attorney-client privilege, it should be borne in mind that a lawyer does not have the right to act as a custodian of instruments and objects of crime and accept orders that are obviously illegal in nature (clauses 1 and 2, clause 4, article 6, clause 3, Article 8 of the Federal Law “On Advocacy and the Bar in the Russian Federation”).
More detailed information on ensuring attorney-client privilege can be found in the Recommendations on ensuring attorney-client privilege, approved by the decision of the Council of the FPA of the Russian Federation dated November 30, 2009 (Minutes No. 3).
[1] In these recommendations, case materials mean any documents and their copies, any records related to the assignment, extracts containing any information on the case, made both on paper and on other media (photographic film, digital media, etc.). d.).
[2] The fulfillment of this requirement has acquired particular importance in the light of the clarification of the Constitutional Court of the Russian Federation, formulated in Resolution No. 33-P of December 17, 2015 (in paragraph 3.2. paragraph 2), that in the event of the court authorizing investigative actions to detect and remove certain specific objects from the materials of the legal proceedings; in relation to the remaining materials of the corresponding proceedings, as well as any other legal proceedings, there is a presumption of the legality of their formation, in other words, other materials (other than those specified in the court decision) of the corresponding legal proceedings and other legal proceedings are not subject to research, examination, study or copying.
[3] The fulfillment of this requirement has acquired particular importance in light of the clarification of the Constitutional Court of the Russian Federation, formulated in Resolution No. 33-P of December 17, 2015 (in paragraph 3.2. paragraph 2), that if the court authorizes investigative actions to detect and remove certain specific objects from the materials of the legal proceedings; in relation to the remaining materials of the corresponding proceedings, as well as any other legal proceedings, there is a presumption of the legality of their formation, in other words, other materials (other than those specified in the court decision) of the corresponding legal proceedings and other legal proceedings are not subject to research, examination, study or copying.
[4] This list should under no circumstances be considered exhaustive. When determining what information is covered by the attorney-client privilege regime, each lawyer must be guided by the provisions of Art. 8 of the Law “On advocacy and advocacy in the Russian Federation.”
How a criminal case is initiated
If you start defending a business at the preliminary investigation stage, your chances of getting an acquittal will be “50 to 50.” Therefore, it is necessary to begin the defense at the pre-investigation stage.
To initiate a criminal case, law enforcement officers must collect evidence. Despite the variety of transactions and schemes of financial and economic activity, all information that is attracted by the security forces must be divided into three large blocks:
- Written sources of information (contracts, primary accounting documents, etc.). Obtained by sending requests or as a result of a visit to the office.
- Digital sources of information (computers, servers, telephones, electronic correspondence). Obtained as a result of a visit to the office and as a result of the seizure of storage media.
- Oral (surveys). Company employees and contractor employees are interviewed.
What mistakes do entrepreneurs make?
Unfortunately, entrepreneurs make mistakes even at the pre-investigation stage. The biggest mistake is not contacting a lawyer in a timely manner. It happens that they turn to him only after the initiation of a criminal case, when a critical mass of evidence has already been collected and it is necessary to defend the absence of intent.
How can an entrepreneur prepare for interrogation?
But there are other errors:
- Active communication through unsecured communication channels (email, telephones, etc.). These are the tools that allow security forces to obtain information through covert operational actions. For example, through wiretapping.
- Providing information without assessing the risks it contains.
- Providing information without assessing the legality of the police request. Not every demand of the security forces is truly legal and justified, which must be remembered.
- Storage of documents and electronic information in the office. By not responding to an illegal request, you may encounter the fact that security forces themselves come to the office and try to forcibly confiscate documents.
Work of a lawyer during the preliminary investigation
If a criminal case has been initiated, the next stage is a preliminary investigation. At this stage, the investigator interrogates witnesses, conducts examinations, seizures, searches, identifications, and inspections. Based on the results of the preliminary investigation, the investigator decides whether to send the case to the prosecutor and then to the court or not.
At this stage, there are several directions in the lawyer’s work.
Firstly, it is assistance to the client during investigative actions, which are carried out on the initiative of the investigator himself. For example, before interrogation, the lawyer explains to the client whether it is advisable to testify, to what extent, or whether it is better to exercise his right not to testify. During interrogation, the lawyer has the right to ask questions to the client, briefly advise him, and protect him from the use of torture or other pressure. Afterwards, the defense attorney checks the interrogation protocol, makes comments on it, if the protocol says something that the person did not say, or it is written in the wrong way.
Secondly, the lawyer has the right to file petitions to carry out investigative actions at the initiative of the defense, to include in the case materials documents in favor of the client obtained by the lawyer himself. This is done so that the case is formed taking into account the position of the defendant, and not just as the investigator needs.
Thirdly, the lawyer records the violations committed against the client. These may be violations that affect evidence (for example, incorrectly selected extras during identification), health status (for example, torture, failure to provide necessary medical care in a pre-trial detention center) and, in general, the legal status of the defendant (for example, being kept in a cage in a courtroom ). Some violations should be responded to immediately, others are useful to simply record, but file the necessary petition or complaint later, and others should be saved for the court.
Fourthly, when the client is in a pre-trial detention center, it is necessary to monitor whether torture is being applied to him, whether his operational employees are trying to persuade him to take on “extra” episodes, or whether his conditions of detention are being deliberately worsened. In addition, it is important to simply maintain contact with the person in custody under stress, so that he receives not only legal, but also moral support.
Important! The investigator has the right not to allow relatives to meet with the person in custody. This is often used to get the accused to confess in exchange for a meeting. At the same time, the investigator cannot limit the lawyer in meetings with the client. When the accused does not admit guilt and is ready to actively defend himself against the accusation, and the investigator “blackmails” him with a meeting, the lawyer becomes virtually the only one who can visit the person in the pre-trial detention center, help and support.
The results of the lawyer’s work during the preliminary investigation may be reclassification of the charge to a more lenient one, exclusion of evidence, termination of the criminal case by the investigator or the creation of the basis for further termination of the case in court, preparation of the case favorable for the client for consideration by his court (including a jury trial or the European Court of Justice). human rights).
How to minimize risks
- Eliminate the possibility of identifying sensitive information through covert operational investigative activities.
- Ensure secure storage of documentation and electronic information. It is better if such information is not available in the office.
- Observe the trade secret regime.
- Prepare company employees to conduct operational search activities. That is, conduct training and inform employees about their rights and responsibilities. Not everyone knows that inspections of premises and surveys can only be carried out with consent. If security forces are not allowed into the office, then they have no right to just go into the office.
- Assess the legality and validity of requests for documentation.
- Refuse to give explanations until a defensive position is formed.
- Refuse to conduct an examination until the possible risks have been assessed.
- Actively appeal violations.
- Don't forget about risk prevention. You need to build a defensive position before you come into the view of the security forces. This includes employee training, verification of counterparties, and generation of management testimony.
Save time on assessing the reliability of the company, reduce commercial and tax risks of the transaction
What employees need to be trained on: their rights and responsibilities and those of the police; explain why it is necessary to take a unified position, how to apply Art. 51 of the Constitution of the Russian Federation, how to behave during a survey and survey.
What managers should know about: illegal schemes and the consequences of their use, measures to protect information, formation of a defensive position, changes in the scheme of financial and economic activities.
