Legal advice

Searches of entrepreneurs: what you need to know and how to behave

Photo of Fact news Fact news17.06.2024
0 42 9 minutes read

Everyone in our country has their own war. And those who remained in the rear of hostilities do not feel confident and protected in any way. Especially, as it is not surprising, applies to business. Relocation of production facilities, shortage of manpower, termination of partnership ties and supply of raw materials or components of products, drop in the solvency of the final consumer, increase in the price of currency and, in connection with this, components or raw materials, active assistance of the Armed Forces of Ukraine. Another one was unexpectedly added to this list of tests that Ukrainian business is going through. Trouble, as they say, came from an unexpected place. The state, instead of supporting entrepreneurs, or at least not interfering, began to put a lot of pressure on law enforcement agencies.

Lawyers from the “Repeshko and Partners” Bar Association comment specially for IA “FACT” on how entrepreneurs should behave during searches.

The most common and simplest means of putting pressure on entrepreneurs is a simple and years-proven means – conducting searches. Moreover, the more massive they are, the better for law enforcement officers. It is not enough to visit the entrepreneur’s office, you also need to search the warehouse premises, the entrepreneur’s home, and even better, catch a couple of counterparties in the deals. All this is accompanied by total removal of documentation, computer equipment, work process stoppage, employees’ stressful state. 

On April 24, 2024, information appeared on the official website of the President of Ukraine that the Head of the Office of the President Andriy Yermak took part in a meeting of representatives of the Office of the Prosecutor General, the Council of the Business Ombudsman, the Council on Support of Entrepreneurship in Martial Law under the President of Ukraine and Ukrainian business associations. This meeting was one of the steps taken by entrepreneurs and the state to resolve issues related to the business situation.

It is not a secret for anyone that the redistribution or capture of business for some categories of citizens is a means of enrichment. Some unscrupulous officials do not shy away from this method, and they seek to provide themselves with a small plant for retirement as a means of stable income. Or the representatives of law enforcement agencies themselves, in the hope of finding something on someone, bypass related business structures. Unfortunately, the plans to solve certain crimes have not gone anywhere – the system still largely works according to the principles of the Soviet Union. Therefore, asking the entrepreneur why exactly he was visited with a search and why now is a rhetorical question. In fact, the unofficial reason can be any, even orders from competitors.

According to official data announced by the General Prosecutor’s Office, every fifth criminal case in the field of economy was closed based on the results of the inspection, which indicates the groundlessness of opening proceedings in the case. We believe that in fact there are much more criminal proceedings that should be closed, but then this will highlight the inefficient work of investigative bodies, so in time many of the remaining cases may end with acquittals in court, or may not go to court at all thanks to professional work lawyers However, despite the number of already closed cases, no information was announced that any of the investigators or prosecutors were prosecuted for inefficient work.

Prosecutor General Andriy Kostin also signed an order approving the Standards of prosecutors’ activity in the field of investment protection, extending their mandatory effect to all prosecutors. According to the Standards, it is provided that a search is an extreme investigative action, and the need to impose an arrest requires proof and consideration of whether the arrest will lead to the actual stoppage of the economic activity of the enterprise

In general, many problems in terms of pressure on business could be avoided if entrepreneurs were better prepared and ready to defend their cause. Considering the fact that it is not always possible for a lawyer to come to investigative actions for one reason or another, we consider it necessary to recall the main points that will be able to protect entrepreneurs from illegal actions of law enforcement agencies.

Experienced lawyers know that investigative agencies’ favorite time to conduct searches is Friday evening, holidays or weekend mornings, especially Saturdays. This is the time when you least expect to see the investigator and the lawyers are also people – they have the right to rest and it is also quite logical that they are more relaxed on such days, have their own personal plans, and therefore cannot always get in touch or come to the investigative action in time.

See also  The Ministry of Education and Science of Ukraine has again taken up the task of updating the regulations on the certification of pedagogical workers, justifying this step by the need to improve the mechanisms of teacher evaluation. However, despite the promises to improve the educational process, the innovation raises doubts and concerns among many teachers. The impression is that instead of real support and development of the teaching staff, the new certification may become an additional tool of pressure on teachers. Are teachers ready for the new conditions? Will the new rules really contribute to improving the quality of education, or is this another bureaucratic requirement that focuses on formalities, ignoring the essence of pedagogical work? What's new in the regulation on certification of teachers The Ministry of Education and Science of Ukraine has updated the Regulation on Attestation of Pedagogical Employees (Order of the Ministry of Education and Science of Ukraine from 09.09.2022 No. 805, as amended by the Order from 10.09.2024 No. 1277) in order, according to the officials themselves, to improve the mechanism of teacher evaluation. According to the new order, the following changes were made to the regulation: regulated the issue of awarding pedagogical titles and qualification categories to teachers who do not have higher education; It has been determined that teachers who transfer to other educational institutions to work in the same positions or interrupt their work shall retain their pedagogical titles and qualification categories until the next attestation’. The procedure for the establishment of attestation commissions has been improved and the list of entities that may establish them has been defined. In particular, the possibility of establishing attestation commissions by private educational institutions and/or their founders has been envisaged; The awarding of the pedagogical titles ‘senior teacher’, ‘senior teacher’ and ‘senior educator’ has been regulated. They are awarded to teachers who, based on the results of previous attestation, have been assigned (confirmed) a qualification category not lower than ‘second category specialist’ (or the corresponding tariff category has been established) and whose work experience is more than 3 years; the assignment of such pedagogical titles is standardised: ‘teacher-methodist’, ‘teacher-methodist’, ‘educator-methodist’, ‘teacher-organiser-methodist’, ‘practical psychologist-methodist’, ‘circle leader-methodist’, ‘senior counselor-methodist’. They are assigned to teachers who work in the relevant positions and who, according to the results of previous attestation, have a qualification category not lower than ‘specialist of the highest category’ (or the corresponding tariff category is set), higher education and more than 5 years of work experience; It has been determined that level I attestation commissions may be established in educational institutions and separate structural subdivisions with at least 15 pedagogical staff; The issue of attestation of pedagogical workers who have a workload in several academic subjects has been regulated. In addition, not only taking professional development courses, but also receiving education in an institution of higher, professional pre-university education for the next 5 years will be counted as professional development. Also from now on, in case of teaching several subjects, teachers independently choose the sequence of professional development within the total volume of professional development (150 hours or 30 ECTS credits). Also according to the new order, after the certification sheet on the decision of the commission is issued, the head of the educational institution must issue a corresponding order, which is a document confirming the assignment of a qualification category or pedagogical title to a teacher. According to the Ministry of Education and Science, more detailed requirements for teachers' professional activities have now been established, which allows for an objective assessment of their work. teachers are obliged to take regular professional development courses and participate in professional seminars, which contributes to their professional development. the success of students has become an important indicator of the effectiveness of a teacher's work, encouraging teachers to improve teaching methods. more autonomy has also been granted to local attestation commissions, which allows them to take into account the region of the country. What teachers think about the renewal of attestation In turn, teachers themselves note the growth of bureaucratic procedures and the need to spend more time on preparation for such attestation. Indeed, the updated requirements for teachers are becoming more and more stringent every year. Teachers are forced to fulfil a lot of new criteria, submit a lot of documents and undergo complicated inspection procedures. But are these requirements justified? In most cases, they turn into additional bureaucracy that has nothing to do with improving the quality of teaching. On the contrary, teachers spend more and more time on reports rather than on the real development of their students. Here are a few comments indicative of the general mood of educators. "The problem is that the heads of the MES have no profile pedagogical education and none of them has worked in a regular school. That is, the object of management for them is terra incognito. So what adequate management decisions do you want from them?’, - Ihor Likarchuk, former head of the Ukrainian Centre for Education Quality Assessment, commented on the situation. Victoria Kudinova, teacher, Facebook user: ‘And maybe teachers should test the MES, we will also prepare a programme, and a quest 24/7 arrange, and lastly we will certify...’ Yarema Romaniuk, teacher, Facebook user: "Every year they change something. Apparently, the clerks from the Ministry have to show their ‘vigorous’ activity?" Teacher, Facebook user: "Thank you very much. The peddlers of the director and pedagogical councils recognise the courses or not. And people pay money and pass. This is really done for people!" Larisa Kotlyarenko, Facebook user: ‘The only + that can become and - it is the awarding of the highest category and titles in their own collective.’ However, the most painful remains another thing - despite the new requirements, the attitude to the teacher as a key figure of society has not changed. The teaching profession, which should be one of the most prestigious in the country, is still undervalued. Teachers, who are expected to deliver high results and innovative approaches to their work, continue to receive meagre salaries, often lacking even the basic resources for quality teaching. With conditions like these, it is not surprising that more and more teachers are leaving the profession. Miserable salaries, constant demands, and lack of support from the authorities - all of this makes even the most dedicated teachers consider changing careers. When the state does not value its teachers, it loses not only its personnel but also its future. After all, without competent and motivated teachers, Ukrainian education is sinking into the abyss. The paradox is that the Ministry of Education and Science constantly puts forward new requirements for the certification of teachers, but who protests the very officials who come up with ridiculous reforms? Have any of them worked in a school under real conditions? Do they realise what they demand from a teacher who, apart from the educational process, still has to solve a bunch of social problems of his students and work without proper support? The main question is: to what extent are the new certification rules really necessary? The MES does not offer concrete solutions on how to improve the working conditions of teachers or increase their motivation. Instead, attestation becomes a kind of test that a teacher has to pass every five years. But instead of supporting and developing specialists, certification turns into an additional stress factor. The new criteria do not take into account the real problems of the educational process: the decreasing number of students in classes, insufficient funding for schools, outdated teaching materials. What will happen to education in such conditions in a few years? If the trend with the outflow of teachers continues, Ukrainian schools will simply have no one to teach our children. Ukrainian education is on the threshold of dangerous changes. If the Ministry of Education and Science does not change its attitude to teachers, and the state does not recognise the importance of decent pay and working conditions for teachers, we risk losing a whole generation of quality specialists. After all, when teachers leave, it is not only empty seats in schools. The future of the country is left without support. It is time to recognise that reforms in education should start not with new requirements, but with care for those who work for children every day. Teachers deserve decent salaries, respect and real support, not another bureaucratic burden. Otherwise, attestation, which is supposed to assess professionalism, will turn into another tool of pressure that will get to those who have not yet broken down. How the process of attestation of pedagogical workers has changed Attestation of teaching staff in Ukraine has a long history, which changed in accordance with the social, political and economic conditions of the country. Over time, the process has been transformed, but its main shortcomings have remained unchanged: increasing demands on teachers without appropriate support and incentives. Let's take a look at how attestation was carried out in the past, what has changed now and how it has affected teachers. In Soviet times, attestation of teaching staff in Ukraine was a formal procedure that was aimed at ensuring that teachers met the requirements of the state education system. Attestation was based on clearly defined standards that had little to do with the actual skills and abilities of teachers. Evaluation was done more to maintain the image of the system than to improve the quality of education. The certification process was fully controlled by the state authorities. Teachers had to undergo compulsory certification at certain intervals. Attestation took place once every five years and teachers received qualification categories that affected their salaries and status in the education system. Although a system of professional development existed, it was more nominal. Most teachers took professional development courses only to fulfil formal requirements. After independence, Ukraine retained many features of the Soviet attestation system but tried to introduce certain changes over time. Until the latest changes, the attestation system remained bureaucratic. As before, attestation was carried out every five years. The main purpose was to confirm teachers' qualification categories. Teachers were evaluated by a special attestation commission, which consisted of school administration, trade union representatives and local education authorities. The assessment was based on teacher's work reports, analyses of lessons attended and documents confirming participation in seminars and professional development courses. Attestation was related to the assignment of qualification categories (specialist, specialist of the second, first and highest categories). A teacher's salary depended on the category. The process remained formal and often did not correspond to the real quality of teachers' work. Bureaucratisation and lack of funding prevented the creation of a real motivation system for teachers. Teachers were often required to report and participate in seminars without real changes in the teaching process. In 2023, the Ministry of Education and Science of Ukraine announced new changes to the Regulation on Attestation of Pedagogical Employees. The changes are aimed at improving the quality of education and simplifying the attestation process, but for many teachers they have become an additional burden. The new requirements have added even more burden to the routine work of teachers. Teachers now have to fulfil a greater number of criteria concerning both professional achievements and the use of modern technologies in teaching. An important component of the new system has been the assessment of pupils' progress. This has caused much discussion, as success depends on many factors that the teacher cannot always influence (social status of the family, material and technical support of the school, etc.). Teachers are now required to take regular refresher courses and participate in professional seminars. While this could be a positive aspect, many teachers note that they are forced to take these courses formally, with no real opportunity to put the knowledge into practice. Attestation commissions now have more autonomy, but this has also led to differences in approaches to attestation in different regions. With the increase in the number of criteria for certification, teachers are under more pressure. Many teachers complain that they have to spend more time preparing for certification than actually teaching. The constant pressure to meet new requirements and ensure high student results leads to stress and emotional burnout. Teachers note that the bureaucratic approach to assessing their work creates additional difficulties instead of support. Despite the new requirements, the financial situation for most teachers has not improved. Salaries remain low and additional responsibilities and requirements are not accompanied by appropriate financial incentives. Due to the increasing workload and lack of adequate conditions, many teachers are leaving the profession. This process only exacerbates the shortage of qualified teachers in Ukrainian schools. It is obvious that despite attempts to update the system of certification of teaching staff in Ukraine, most of the changes do not address the main problems, such as low salaries, insufficient support from the state and excessive bureaucratisation. The state should realise that in order to improve the situation it is necessary not only to introduce new criteria, but also to provide real support for teachers, in particular financial support, and to create conditions for their professional development that would meet modern requirements. Attestation of teaching staff abroad Attestation of teaching staff in foreign countries differs significantly from the Ukrainian system and can serve as an example for the introduction of more effective approaches to the assessment of teachers' professional performance. For example, in Finland, which is known for its high-quality education system, teacher certification is practically absent in the usual sense. In Finland, the emphasis is on teacher training and professional autonomy. Teachers receive a high level of academic training while they are still in higher education, as a master's degree is compulsory. However, teachers regularly participate in continuing education and professional development. At the same time, there is no formal appraisal system, but rather student learning outcomes are assessed. In turn, continuous professional development is voluntary and at the same time strongly encouraged by the state. In the US, teacher certification is regulated at the state level, so systems may vary. In general, however, the process involves: Regular reviews and evaluations. Administrators or head teachers observe lessons and evaluate teaching skills and ability to work with students. Professional development. teachers have the opportunity to take professional development courses. Many states require teachers to obtain certificates or licences to prove their knowledge and skills. Evaluation based on student performance. in some states, student performance on standardised tests is an important part of certification. This is controversial because student performance depends on many factors. Canada uses teacher evaluation systems similar to those in the United States, but with certain features. In some provinces, teachers must undergo regular observations and evaluations at different stages of their careers. For example, novice teachers undergo frequent examinations and supervision to test their ability to handle the classroom. Teachers must also undergo periodic professional development courses. As in the US, student results also affect teacher appraisals. In the UK, teacher certification is done through a system known as OFSTED (Office for Standards in Education), the national regulator of educational quality. Appraisal takes place through supervision and inspections, during which lessons are examined. Supervisors can come to lessons unannounced to assess a teacher's professionalism. Great emphasis is placed on pupils' results, progress and level of knowledge. Teachers are required to participate in professional development programmes and this is also taken into account in the appraisal process. Singapore, one of the countries with the most successful education systems, has introduced a comprehensive system of teacher appraisal and professional development. All teachers are required to undergo stages of regular performance evaluation based on the following criteria: performance evaluation - includes lesson observation, teacher self-assessment and student surveys; learning outcomes - student progress plays an important role; professional development - teachers should participate in continuous professional learning programmes, which are also taken into account in the evaluation. As we can see, foreign teacher appraisal systems show that the effectiveness of appraisal often depends on teachers' professional development, autonomy and support system. In many countries, teachers do not experience excessive pressure of bureaucracy, and the process of evaluation of their work is more aimed at helping them develop professional skills rather than punishing them. So, Ukrainian education is on the edge of the abyss, and the next innovations of the Ministry of Education and Science are only bringing it closer to disaster. The new certification requirements have become an additional burden on teachers who are exhausted by bureaucracy, low salaries and lack of real support. Instead of improving the working conditions of teachers, we see a mass exodus of professionals from a system that exhausts them. The question is, who will stand in front of the classroom tomorrow when today's teachers leave the profession? Unless we stop this process and offer real changes - higher salaries, less bureaucracy, support for professional development - Ukrainian education risks being left without those who create it. Famous personalities have long spoken about what a society without education is like, so it would be useful for officials from the MES to listen to them: "Without education, nations quickly turn into obedient slaves ’ - Jean-Jacques Rousseau. "A society that does not invest in education prepares the ground for its own decline ’ - Heinrich Heine. ‘Without education, society is a mob, easier to manipulate than to develop’- William Dubois. "A people deprived of education is like a man without eyes ’ - Konstantin Ushinsky. "Education is the most powerful weapon that can be used to change the world. Without it, the world will remain in the chains of ignorance.’ - Nelson Mandela. "The darkness of ignorance feeds all forms of evil, and lack of education feeds the darkness ’ - Thomas Jefferson. ‘Without education, society lives for today without building a future for itself ’ - John Dewey. "Education is the guardian of liberty. Without it, society will be confined to a framework of blind obedience ‘ - George Washington.

The search is conducted for the purpose of identifying and recording information about the circumstances of the commission of a criminal offense, finding the instrument of a criminal offense or property obtained as a result of its commission, as well as establishing the location of wanted persons. The investigator or prosecutor substantiates the grounds and necessity of this investigative action to the investigating judge by submitting a petition for issuing a decision to conduct a search. Thus, the judge decides whether the specified investigative action is justified or not.

So, the first thing you need to remember if they come to you with a search is the presence of a decision of the investigating judge to conduct a search. This court decision must contain information about the office, apartment or other premises where the search is planned, the owner or user of the said premises; documents or things for the sake of which the search will be conducted; data on the prosecutor or investigator who initiated this investigative action, the validity period of the decision (no more than one month from the date of issuance).  In addition, if the search, despite all the groundlessness, in the absence of a decision of the investigating judge, began, it is necessary to clearly record all the circumstances of the implementation of this investigative action under the existing conditions in the search protocol.

Regarding the situation when there is no decision of the investigating judge on permission to conduct a search.  The investigator has the right to enter the dwelling or other property of a person before the decision of the investigating judge is issued only in urgent cases related to:

  • with saving people’s lives and property 
  • with direct prosecution of persons suspected of committing a criminal offense. 

In this case, the prosecutor, the investigator is obliged to apply to the investigating judge immediately after taking such actions with a request to conduct a search. Here is the second interesting point – how virtuous is the investigating judge, to whom the investigator or prosecutor will then go in order to legalize the search. It’s no secret that the human factor matters, as do personal connections. 

It must be remembered that the decision of the investigating judge on the permission to search the home or other property of a person on the grounds specified in the petition of the prosecutor, the investigator, gives the right to enter the home or other property of the person only once. In turn, entrepreneurs must always be ready for any surprises from law enforcement agencies. The best option is to conclude a contract with a lawyer who, in case of any unclear situation, will come to clarify the grounds and circumstances of the search. At the same time, you need to honestly tell the lawyer in advance, as in a confession, all the nuances and circumstances of your activity, as well as any weak points – about them first of all. Everything that the lawyer will be informed about is a lawyer’s secret, but thanks to this, a lot of money, property and nerves can be saved.

If the entrepreneur does not work alone and has, accordingly, a team of employees, then they must also be prepared just in case for an unexpected search, namely: explain to everyone his rights and responsibilities, determine options for the development of events and an algorithm of actions in response, distribute responsibilities relations between employees in the event of the arrival of law enforcement agencies. 

In addition to employees, it is necessary to take care of the safety and preservation of equipment and information. In this regard, it will not be superfluous not to keep some documents at home or in the office, but to remove the bank safe or put it in safe hands, set complex passwords on the equipment, duplicate documents in an electronic version on an additional server that is not connected to office, review the documents as a whole and destroy those that are not needed or those whose retention period has expired.

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However, regardless of even very good preparation for any surprises, it is very difficult for an ordinary entrepreneur to fight with the entire system of law enforcement agencies, because the forces are not equal. In some cases, the state machine uses its own methods, which are not at all fair. One of them is the fact that criminal proceedings may be opened by a different law enforcement agency than it could be, for example. 

Yes, the pre-trial investigation is carried out by:

  1. investigative units of the National Police; security agencies;  bodies of the State Bureau of Investigation;
  2. detective unit, internal control unit of the National Anti-Corruption Bureau of Ukraine;
  3. units of detectives of the Bureau of Economic Security of Ukraine.

Investigations are carried out by investigation units or authorized persons of other units: bodies of the National Police; security agencies; bodies of the Bureau of Economic Security of Ukraine; bodies of the State Bureau of Investigation; National Anti-Corruption Bureau of Ukraine.

Each of these bodies has a clear list of categories of cases that it can investigate. But sometimes it is necessary to add just one touch to the plot of the crime, even a hypothetical or completely far-fetched one, so that, for example, the Security Service of Ukraine takes up the case instead of an investigator from the district police station. This is also a very important lever of influence on business, because it is one thing when the police came to you with a search, and quite another – when employees from the SBU joined the case. At the same time, all this may look completely legal and logical at first glance, but as they say, the devil is in the details. 

Also, now a statement of any interested or conditionally interested person is enough to start a criminal case. Such a statement will be entered into the Unified Register of Pre-Trial Investigations, it is required to be entered, otherwise nothing else, and the active activity of law enforcement agencies with “investigation” will begin.  Whether there is something to investigate or not, the person to whom it concerns will not know immediately, no one is obliged to warn the entrepreneur that a criminal case was opened against him five minutes ago. Therefore, it is quite possible to find out about such a “surprise” already after several weeks of actively collecting information by law enforcement agencies by legal means and sometimes not so much. 

The question of responsibility – criminal for the investigator or prosecutor or material for the investigation body as a whole would largely resolve the issue of illegal actions within the framework of criminal proceedings. But now the business is so tired of the struggle and does not want to go through numerous court processes and instances that it does not even dare to sue law enforcement officers for the purpose of collecting both direct damages from illegal investigative actions and lost profits. This is quite understandable, because without significant changes on the part of the state, it is quite possible to receive a new criminal case in response – impunity breeds impunity.

Nevertheless, in the event that there is no warrant of the investigating judge on the search, and the representatives of the law enforcement agencies are trying by all means to search the entrepreneur, it is necessary to take the following steps, and the more of them from this list, the better:

  • to find out from the investigator a clear formulation of the reason for conducting the search;
  • make a video recording of everything that is happening, preferably from several angles;
  • to make a call to call the police and upon the arrival of their representatives to file a statement about the crime provided for in Art. 365 of the Criminal Code of Ukraine – abuse of power and official authority by a law enforcement officer;
  • call the hotlines of relevant law enforcement agencies
  • in the search protocol, carefully record all violations that you believe have occurred, in the form of written comments indicating that you have videotaped them;
  • in case of any bodily injuries, even if you think they are insignificant, it is necessary to record them by means of photo and video recording, and consult a doctor.

So, there are no easy ways, but “Fight and win!”, as the immortal Kobzar said.

 

Photo of Fact news Fact news17.06.2024
0 42 9 minutes read
Photo of Fact news

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