EQUITY – a long-standing partner of the KYIV CRIMINAL LAW FORUM

Taras Poshivanyuk, a partner at EQUITY, spoke during the session ‘The Battle for Evidence: A Technological and Procedural Duel’ on the topic ‘Electronic Evidence: A Procedural Algorithm from Seizure to Admissibility Challenges’.

 In his presentation, the speaker examined the full cycle of working with electronic evidence: from the moment of its seizure, through the procedure for determining its procedural status at the pre-trial investigation stage, to its exclusion at the trial stage.

 Key points:

- Electronic evidence has a dual nature: the medium is physical evidence, whilst the information contained therein, documented via an inspection report or expert examination, is written evidence.

- Typical violations by the prosecution: conducting an expert examination by an interested party without expert status; failure to provide the original media in accordance with Article 290 of the Code of Criminal Procedure; use of screenshots and printouts without proper procedural recording.

- Courts deem evidence inadmissible if its format has undergone technical changes without procedural documentation, even if the changes were made solely for the purpose of restoring files.

 “In 99% of searches, the aim is to seize digital media and telecommunications devices. The defence’s task is to know the procedure and be able to exploit the prosecution’s errors,” emphasised Taras Poshivanyuk.

EQUITY partner Bohdan Slobodian took part in the session ‘Criminal Defence for Business’, speaking on the topic ‘The conflict between Articles 212 and 364 of the Criminal Code of Ukraine: issues of jurisdiction and defence strategy’.

In his presentation, the speaker focused on one of the most contentious issues in the practice of investigating economic crimes – the relationship between the elements of criminal offences under Articles 212 and 364 of the Criminal Code of Ukraine and their practical implications for business. 

The presentation focused on:

- Article 364 of the Criminal Code of Ukraine is often added to proceedings to change jurisdiction or increase procedural pressure on company management. 

- For an independent classification under Article 364, the investigation must prove a separate object of the offence.

- The Supreme Court has consistently held that the mere fact of using one’s official position is insufficient; it must be established that the actions were directly motivated by official powers and fell within the scope of the person’s official duties. 

- The defence strategy must be two-pronged: procedurally – verifying the legality of the determination of jurisdiction and the admissibility of evidence; substantively – proving the absence of a separate official offence. 

"Not every instance of tax evasion constitutes an abuse of power. Otherwise, any company director would automatically be transformed from a perpetrator of a specific tax offence into a perpetrator of an official offence, which would effectively nullify the existence of Article 212 of the Criminal Code of Ukraine as a separate specific provision,” concluded Bohdan Slobodian.

The EQUITY team’s expertise is put into practice on a daily basis in complex criminal proceedings.