Written requests of law enforcement agencies: what should one pay attention to?
Written requests of law enforcement agencies are quite a usual thing. Often it is simpler and faster for them to file such request than to visit an enterprise with an inspection which can quite possibly be denied based on lack of grounds. Paper doesn’t complain so sometimes in order to simplify their work related to search of “prey” they file requests about provision of maximal amount of documents related to different aspects of enterprise activities with a hope to find some inconsistencies. In order not to get in troubles and avoid provision of documents based on illegal requests of law enforcement agencies one should know the following.
When receiving a written request it is required first of all to verify presence of all formal requisites: number, date, signature and seal of a body which filed it. Unfortunately legislation does not define the person that signs militia requests. But since in accordance with Subsection 17 of Article 11 of the Law “On militia” such requests can be filed only for investigation of crime related cases then obviously such requests can be filed only by employees of bodies of criminal and tax militia. If a request was filed by public prosecution office and is not related to investigation of a criminal case then it must be signed by the public prosecutor (not by his deputy or investigator of public prosecution). If a request came from the Security Service of Ukraine then it must be signed by the head of appropriate body of the Security Service of Ukraine (Subsection 3 of Article 25 of the Law “On Security Service of Ukraine”).
After this one should examine legislation that is referred to by law enforcers. Frequently these requests include simple references to laws or articles of laws without specification of particular clauses and provisions which allow to make such requests. For example a request can simply include reference to Article 11 of the Law “On militia” which includes a list of its powers that consists of 32 clauses. And obtainment of documents on request is provided by two clauses – Subsection 17 and 24.
Sometimes they refer to provisions that are not under their authority. For example tax militia sometimes refers to Subsection 73.3 of the Tax Code of Ukraine which regulates powers of bodies of the State Tax Service of Ukraine regarding its requests which have nothing to do with tax militia. Such facts can be used to deny provision of documents.
Besides references to appropriate regulations a request must include appropriate reasoning, respective powers of those who receive the request. As mentioned above in accordance with Subsection 17 of Article 11 of the Law “On militia” militia can file requests regarding information that is required in crime related cases that are investigated by militia. So the request must include information about particular criminal case which requires such information and number of the case. In case if the information is requested based on Article 97 of the Code of Criminal Procedure and is required in order to make a decision about initiation or denial of initiation of a criminal case then the request must include reference to the article as well as number of crime notification from the Registration log of notifications and statements about crimes.
Requests of public prosecution office and the Security Service of Ukraine also have their limitations regarding field of application unless they deal with investigations of criminal cases. Authority of public prosecution office which seems unlimited due to its general supervision function provided by Subsection 9 of Chapter 15 of the Constitution of Ukraine is actually limited by the legislation in force. Since the Law “On public prosecution” does not provide such function anymore then it can apply it only in cases when it is still provided by the legislation. For example such power is provided in the field of supervision over labor legislation (Section 3 of Article 259 of the Code of Labor Laws of Ukraine), vacations (section 3 of Article 27 of the Law “On vacations”), scrap metal (Section 2 of article 14 of the Law “On scrap metal”) and others. So request of public prosecution that is filed based on Article 20 of the Law “On public prosecution” has to deal with one of the fields for which the function of general supervision can be applied and the request must include reference to a provision which confirms such powers.
Requests of the Security Service of Ukraine which are not related to investigation of criminal cases can be filed only to obtain information that is required for the safety of the state (Subsection 3 of Section 1 of Article 25 of the Law “On the Security Service of Ukraine”).
Of course this list of legality/illegality features of requests is not limited and is individual in each particular case. But one should remember that provision of documents without any consideration is not a good idea.
Finally administrative liability for non-fulfillment of lawful requests is insignificant. But you should not also be inactive because such behavior may result not only in administrative liability but also in real inspection. So the best way of response to illegal or unfounded requests is to answer them and explain reasons based on which an enterprise cannot provide the required documents. And it would be better if such answers were advised on with professional lawyers.
This material was prepared by law firm “Pravova Dopomoga”. It is related to service of Legal representation.