Lawyer Artem Chekotkov explains who and why from the law enforcement agencies has the right to send a request to the company for information and what this can lead to. And most importantly, how to protect yourself from unlawful actions of security forces?
Business always carries certain risks: financial, price, investment, reputational and many others. The peculiarity of domestic business processes is that they are also associated with risks of a criminal legal nature.
Signal that law enforcement agencies are interested in the business
Recently, crisis phenomena in the economy have led to the fact that the likelihood of criminal legal risks has increased, and entrepreneurs are increasingly finding themselves in a situation where their commercial activities can lead to loss of business or even imprisonment.
Such consequences are, of course, the most negative manifestations of operational investigative measures in relation to business. And they do not occur in every case.
However, even the attention of security forces to the company itself can destabilize its activities for a long time.
A signal indicating that law enforcement agencies are interested in your business is when the organization receives a request “For documentation.”
Submitting a request is one of the most common actions of law enforcement officers. It is this that becomes the first stage in the process of realizing criminal legal risks.
In the article, we will analyze how law enforcement officers exercise the authority granted to them to request documentation from commercial organizations, and also provide a number of practical recommendations that, from our point of view, can significantly reduce the criminal legal risks of your business.
Massive number of requests for documentation
So, the right to send requests is vested in a wide range of entities, ranging from the Accounts Chamber of the Russian Federation to control departments of the executive branch (Rospotrebnadzor, Roszdravnadzor, etc.). In turn, the process of bringing to criminal responsibility is within the competence of only law enforcement agencies that request documentation in connection with the investigation of a criminal case or verification of an allegation of a crime (pre-investigation check).
In this case, business faces the following bodies: the Ministry of Internal Affairs of the Russian Federation, the FSB of the Russian Federation, the Investigative Committee of the Russian Federation. Negative consequences for legal entities may also occur in the event of a prosecutor's inspection, within the framework of which employees of the Prosecutor's Office of the Russian Federation also have the right to send requests for documentation.
Showing interest in the business, designated entities first send requests to the company for documentation.
As already noted, this action is the first stage in the process of conducting an inspection (whether police or prosecutorial) and is implemented in the vast majority of cases.
The massive nature of sending requests is due, firstly, to the relative simplicity of its preparation (security forces only need to print a page of text).
Secondly, if they respond to a request, law enforcement officers receive a large amount of information, which can subsequently become evidence in a criminal case.
As a result, when receiving a request, it is necessary to give it a legal assessment and only after that make a decision to provide information. In order for the legal analysis of the received request to be complete and effective, first of all, it is necessary to understand what constitutes a truly legal and justified request, the receipt of which obliges the company to provide the necessary documentation to law enforcement officers.
To whom should the application be addressed?
The initiation and investigation of criminal cases is the prerogative of law enforcement agencies, so a statement can be sent to both the police and the prosecutor's office, or even both of these bodies at the same time.
It is advisable that the police department or prosecutor's office geographically correspond to the place where the application was written.
However, there are no restrictions on filing applications with higher territorial authorities. That is, a statement regarding a fact that took place, for example, in Saratov, can be sent to the General Prosecutor's Office of the Russian Federation or the Ministry of Internal Affairs of the Russian Federation. In this case, you can be sure that in the end the application will end up where it should have gone initially.
This is explained by the fact that the prosecutor’s office and the Ministry of Internal Affairs are a strict hierarchical structure of vertical subordination.
Legal nature of the request for documentation
A request for information and documents is a law enforcement act. In other words, by sending a request, law enforcement officers exercise the authority granted to them to obtain the necessary documentation. These powers are enshrined in federal legislation regulating the basic activities of individual law enforcement agencies:
— The Ministry of Internal Affairs of the Russian Federation is vested with the designated authority of clause 4, part 1, art. 13 of the Federal Law “On Police”. Police officers have the right to request and receive, free of charge, upon a reasoned request from authorized police officials, from state and municipal bodies, public associations, organizations, officials and citizens, information, certificates, documents (copies thereof), and other necessary information;
— The FSB of the Russian Federation has been granted the right to request information in accordance with paragraph “m” of Art. 13 of the Federal Law “On the Federal Security Service”. Employees of the FSB of the Russian Federation have the right to receive, free of charge, from enterprises, institutions and organizations, regardless of their form of ownership, the information necessary to fulfill the duties assigned to the federal security service;
— The Investigative Committee of the Russian Federation has the authority to request documentation and information in accordance with clause 1, part 3, art. 7 of the Federal Law “On the Investigative Committee”, according to which the investigator has the right to demand from heads and other officials of bodies, enterprises, institutions and organizations to provide the necessary documents, materials, statistical and other information.
— The Prosecutor's Office of the Russian Federation has the right to request documentation and information based on Part 1 of Art. 22 of the Federal Law “On the Prosecutor’s Office”, based on which employees of the prosecutor’s office, when exercising their powers, can demand from heads and other officials of bodies, enterprises, institutions and organizations to provide the necessary documents, materials, statistical and other information.
Based on these norms, law enforcement officers send requests to organizations to provide documents and information.
But we must understand that, like any other law enforcement act that provides for the fulfillment of any duties, a request for information must have two properties - legality and validity:
- legality - assumes that the requirement to provide documentation must be based on the rules of law that give law enforcement officers the right to request documentation (indicated above);
- validity - lies in the fact that the request must indicate specific factual circumstances, the presence of which allows us to conclude that the requested documents and information are really necessary for a comprehensive and complete investigation of the criminal case or inspection.
These two components together make the demand of the security forces mandatory and, accordingly, entail liability for ignoring the request.
In practice, most often there is no proper motivation for the requirements.
Law enforcement officials are convinced that if the law gives them the right to request documents and information, then no additional argumentation is required in this case.
Such an interpretation of one’s powers, in addition to indicating the low level of legal culture of a particular law enforcer, also creates space for abuse. Thus, in practice, there are often cases when, under the guise of an investigation into a criminal case, information is requested that is completely unrelated to the facts under investigation.
Often, security forces, when checking a crime report, request information about all financial and economic activities of the organization for all contractors, naturally, without giving any reasons for requesting such a significant amount of information.
The consequences of such violations can be expressed, at a minimum, in destabilization of the activities of a commercial organization.
Before initiating a criminal case (pre-investigation stage)
Practice shows that the bulk of requests in an organization are sent precisely at the pre-investigation stage.
In order to make a decision to initiate a criminal case, law enforcement officers need to collect as much information as possible indicating the facts of the commission of a crime. And the most convenient way to do this is to send a request for documentation.
In this case, business is faced with the activities of the already legendary department for combating economic crimes and anti-corruption (OEBiPK) and, less often, with the operational units of the FSB of the Russian Federation.
When sending a request to an organization, employees of these departments, firstly, must indicate the legal norms that give them the right to request documentation (clause 4, part 1, article 13 of the Federal Law “On Police” or clause “m” of article 13 of the Federal Law “About the Federal Security Service”), then the request will have the property of legality. In practice, these legal norms are contained in the texts of the request in most cases.
Secondly, and most importantly, the following information must be provided as a factual basis:
- number and date of the KUSP (crime reporting book) - all crime reports must be registered and a number is assigned to them. This information indicates that law enforcement officers are actually conducting an inspection and are not requesting documentation based on any other (sometimes not always legal) motives;
— the request must indicate on what facts verification activities are being carried out. This information allows you to assess whether the activities of a commercial organization really relate to the subject of the audit;
— the text of the request must contain information about how the requested documentation is related to the subject of the inspection.
With the simultaneous presence of these components, the request can be considered truly legal and justified. Unfortunately, in practice, correctly justified requests are extremely rare.
If the security forces almost always provide information about the number and date of the KUSP, then an explanation of the facts on which the check is being carried out, and especially how the requested documentation relates to its subject, is almost always missing.
In this case, when preparing a response, it is necessary to point out to law enforcement officials the shortcomings of the request with a request to properly justify their demands. Providing documents in such cases can lead to negative consequences, since the motives for sending the request can be very different.
Drawing up an application
As we said above, there is no strict form for filing a criminal complaint. Moreover, there are not even requirements for mandatory structural elements, since law enforcement agencies are required to consider any information about crimes committed, even if this information is received anonymously.
If the applicant does not have a goal to maintain his anonymity, then the application should indicate: the name of the body to which the application is sent;
- Full name and address of the applicant;
- the event that the applicant regards as a crime, indicating the date, time, etc.;
- Full name of the person the complainant is accusing. This is also not a mandatory condition, since the victim may not know who committed the crime. If the criminal is unknown, it is advisable to indicate any signs or information about him, on the basis of which the investigative authorities will be able to make an identification;
- Usually, applications contain a request to the person to whom the application is sent. Since an application to initiate a criminal case is not a request, but information, you don’t have to ask for anything. It is permissible to include in the statement a kind of operative part, in which, instead of a request, you inform about your attitude to the event that took place. For example, “I believe that in the actions of Ivanov I.I. contains all the signs of a crime, and therefore I believe that the investigative authorities should initiate a criminal case against him.”
After the initiation of a criminal case
In a situation where a criminal case has already been initiated, requests to the organization are not sent so often.
Criminal proceedings are no longer carried out by operational units, but by investigative units, which have other, more effective tools for obtaining information (conducting searches or seizures, for example).
However, often, under the guise of a criminal investigation, documents and information may be requested that are in no way related to the facts in connection with which the investigation is being carried out.
Such situations are not always caused by legitimate reasons, and therefore, when receiving a request, it is necessary to carefully check it for compliance with the criteria of legality and validity.
As in the case of pre-investigation checks, security forces need to point out the legal norms that establish the authority to make inquiries.
However, in practice, only Part 4 of Art. is indicated as a legal basis. 21 of the Criminal Procedure Code of the Russian Federation, which states that the demands and requests of the investigator, presented within the limits of their powers, are mandatory for execution by all institutions, enterprises, organizations, officials and citizens.
This justification is incorrect and must be supplemented by a legal norm that provides such powers.
Regarding the factual argumentation of the request for documents and information, it is similar to the stage of the pre-investigation check and must contain information about the number and date of initiation of the criminal case, the facts on which the investigation is being carried out, as well as information about how the requested information is related to the subject of the criminal case.
Structure of explanations
The text of the explanations should begin with the name of the body to which the explanations are provided. You can also indicate the name of the official selecting the explanations. For example, “Senior Inspector of the Michurinsky Department of Guardianship and Trusteeship I.A. Dobrenka.”
Next are the full name, place of residence and other (if necessary) data of the person giving the explanation. The amount of information that must be provided will be reported by the official selecting the explanations. Police officers usually ask for all personal and contact information.
In the center of the sheet the name of the document is indicated - “Explanations” and under it begins a statement of the circumstances that the official wants to find out.
The explanation ends with the date of their composition and the signature of the author.
Prosecutor's check
As such, the purpose of a prosecutor's audit carried out in relation to a commercial organization is not limited to bringing entrepreneurs to criminal liability.
Employees of the prosecutor's office check the company's activities for compliance with certain requirements of current legislation.
However, if during the inspection facts are revealed that indicate a crime has been committed, then the materials of this inspection are sent to law enforcement agencies (police, Investigative Committee of the Russian Federation) to resolve the issue of initiating a criminal case.
Thus, an inspection by the prosecutor’s office also carries criminal legal risks for business.
Prosecutor's office employees are more careful about motivating their demands. Most prosecutorial requests have a legal basis; they also contain information about what facts are being investigated.
But, as in all previously noted cases, the requests, as a rule, do not explain how the requested information may be related to the subject of the audit.
In such a situation, the request cannot be considered motivated and a response must be given with a request to properly substantiate your demands.
Summarizing the description of the most typical situations in which commercial organizations are faced with receiving a request, it is necessary to make a common conclusion for all that, unfortunately, in practice, proper justification of their demands by security forces is not universal.
Of course, the provision of documents in such cases is not mandatory, but it should also be remembered that the law establishes administrative liability for failure to comply with the requirements of law enforcement officers.
Statements by way of private prosecution
A special niche is occupied by applications to initiate a criminal case sent to the court as a private prosecution (Article 20, Part 2 of the Code of Criminal Procedure of the Russian Federation).
These statements require detailed motivation, which is due to the fact that the role of the prosecutor in this category of cases belongs not to the prosecutor, but to the victim.
Applications for private prosecution are sent not to the police or prosecutor's office, but to the magistrate, which means they must be drawn up in accordance with the requirements for going to court.
Thus, a statement of private prosecution must contain:
- name of the court;
- Full name, address and contact details of the applicant;
- Full name, address and contact details of the accused;
- a detailed description of the event that the applicant regards as a crime, and the qualification of the actions of the accused under a specific article of the Criminal Code;
- a list of documents attached to support the accusation and a list of witnesses to be summoned to court;
- date of application and signature of the applicant.
You can read more about preparing this type of statement here.
Responsibility for failure to provide documents
The Code of Administrative Offenses establishes two cases when entrepreneurs can be held accountable for refusing to submit documents.
Firstly, Art. 19.7 of the Code of Administrative Offenses of the Russian Federation “Failure to provide information (information)” provides for liability in the form of:
- warnings,
- administrative fine:
for officials - from three hundred to five hundred rubles;
for legal entities - from three thousand to five thousand rubles.
These sanctions are applied for failure to provide documents if the company receives a request at the pre-investigation stage (before the initiation of a criminal case).
Secondly, Art. 17.7 of the Code of Administrative Offenses of the Russian Federation “Failure to comply with the legal requirements of a prosecutor, investigator, investigator or official conducting proceedings in a case of an administrative offense” provides for liability in the form of:
- administrative fine:
for officials - from two thousand to three thousand rubles or disqualification for a period of six months to one year;
for legal entities - from fifty thousand to one hundred thousand rubles.
— administrative suspension of activities for up to ninety days.
In this case, quite serious sanctions are already provided and they can be applied either upon receipt of a request after the initiation of a criminal case, or during a prosecutorial investigation.
Law enforcement practice
These liability measures are implemented only in cases where entrepreneurs have not provided documentation in response to a lawful and reasonable request.
To support this conclusion, we can cite a number of examples from judicial practice, where the actions of law enforcement officers were recognized as illegal, and entrepreneurs were released from administrative liability.
Thus, the Omsk Regional Court, in a resolution dated 02.02.2012 in case No. 4-A-10/2012, indicated that “Require the provision of information without any grounds listed in the law, only for the purpose of possible detection of the activities of officials institution or organization, signs of a crime, is unacceptable in police work, since such a requirement violates the legitimate interests and rights of not only specific citizens, information about which was requested, but also the legitimate interests of institutions and organizations, since their employees are forced to be distracted from their main activities in order to execution of a police request."
As a result, the actions of the police officers were declared illegal, since their request did not contain a reference to the investigation of a specific criminal case under investigation, or to a statement or report of a crime registered in the prescribed manner.
In the appeal ruling of the Supreme Court of the Republic of Tatarstan dated August 22, 2013 in case No. 33-9847/2013, the court declared the request for documentation based on an oral request of a police officer unlawful and pointed out that “the current legislation obliges and gives the right to police officers to receive free of charge basis, the necessary information relevant to the case under investigation, only upon a reasoned request.”
The position of the Astrakhan Regional Court, expressed in the resolution of July 16, 2015 in case No. 4a-303/2015, is indicative. The court, recognizing the actions of law enforcement officers as illegal, Fr.
As a result, the court came to the conclusion that “demanding the provision of information without any grounds listed in the law, only in connection with official necessity, is unacceptable...”.
Giving an explanation to the police
There are two ways to give explanations - write them personally or dictate them to the person who selects these explanations.
As a rule, explanations given to the police are recorded by the police officers themselves from the words of those interviewed. This does not mean that police officers set themselves the task of tailoring explanations to the interests of the proceedings. In most cases, this is explained by the fact that police documents are characterized by a set of phraseological clichés that help structure explanations.
For example, the introductory phrase “Based on the essence of the questions asked to me, I can explain the following...” means that the explanations were written (printed) by the hand of a police officer or under his dictation.
In addition, explanations to the police are, in fact, a set of answers to sequentially asked questions. Philologically illiterate police officers usually format explanations and testimony in question-and-answer form. For example: “Investigator’s question: Do you know Igor Vasilchikov? Answer: Igor Vasilchikov and I have been friends since childhood; we went to kindergarten and school together.”
Competent investigators and interrogators compose the text of explanations so that the answer of the interviewee also contains the topic of the question. For example, “I characterize Igor Vasilchikov on the positive side. I never saw him drunk and never saw him use drugs.”
If the explanation was written by the respondent himself, then at the end of the text he will need to enter the phrase “The explanation was written by me with my own hand,” put the date and sign.
If the explanations were written down by a police officer, then the last phrase will be another phraseological cliché: “The explanation was written down from my words correctly, I read it, and I sign for it.” This phrase implies that the interviewee has read what the investigator or interrogator wrote down from his words and agrees with what was written.
Comments that arise after reading are formatted approximately as follows: “I would like to clarify that a mistake was made when recording my explanations. I did not say that Igor Vasilchikov worked with me at the finished products warehouse of Nasha Vodka LLC. He sometimes came to my work and helped ship boxes of vodka from the warehouse to customers’ vehicles.”
