A Search Is Underway at the Office
Investigative actions are being conducted and documents, computers, phones or data carriers are being seized. The procedure must be monitored and everything that happens must be recorded.
BUSINESS DEFENSE
Criminal Law Defense for Business and Executives
Has your company been subjected to an inspection or search, has an executive been summoned for questioning, are documents and equipment being seized, or is a commercial conflict moving into the criminal-law sphere? In such a situation, it is important not to react to each action separately, but to understand the overall procedural picture and the risks for the owners, management and the business itself.
We review materials, contracts, cash flows, participants’ authority and law-enforcement actions. We build a defense strategy for the executive while also taking into account the impact of the criminal process on the company, its assets and current operations.
WHEN DEFENSE IS NEEDED
At What Stage Did the Criminal-Law Risk Arise?
The earlier the actual procedural status and the subject of law-enforcement interest are understood, the fewer decisions have to be made blindly.
An Executive Is Summoned for Questioning
The procedural status, expected subject of questioning and risks should be understood before any testimony is given.
A Pre-Investigation Review Is Underway
Documents are being requested, employees are called to give explanations and counterparties are questioned, although a criminal case may not yet have been opened.
A Commercial Dispute Has Become a Criminal Matter
A conflict between partners, creditors or counterparties is accompanied by an allegation of fraud, misappropriation, abuse or another offense.
Company Transactions Are Being Questioned
Questions concern contracts, payments, taxes, asset transfers, corporate decisions or relationships with counterparties.
A Criminal Case Has Already Been Opened
The prosecution evidence, investigative actions and legal characterization must be analyzed and a systematic defense built during the preliminary investigation.
Nikolay NemkovManaging Partner, Konsultant Law Firm
NIKOLAY NEMKOV ON BUSINESS DEFENSE
The Most Expensive Mistake Is Explaining the Situation before the Risks Are Understood
In business, the same transaction may look different in a contract, in accounting records and in a criminal case file. Before explanations or testimony are given, the facts should therefore be reconstructed and the version of events already being formed by law enforcement should be understood.
DEFENSE LOGIC
First Understand What Is Being Checked. Then Decide What to Do.
Criminal law defense for business does not begin with a universal instruction to “say nothing,” nor with an attempt to explain the entire commercial history of the company to an investigator. First, the procedural status, the factual theory of the accusation and the evidence that already exists need to be understood.
01
Determine Procedural Status
We identify who participates in the review or case and in what capacity: executive, owner, employee, witness, suspect or accused.
02
Reconstruct the Facts
We analyze contracts, payments, correspondence, corporate decisions and the actual commercial circumstances.
03
Compare the Facts with the Prosecution Theory
We identify which actions law enforcement considers unlawful and what evidence supports that view.
04
Build the Defense Strategy
We decide what testimony to give, what documents to provide, what motions and complaints to file and what defense evidence to collect.
The task is not to react to each investigative action separately, but to understand how it relates to the overall theory of the criminal case.
WHAT WE DO
What Criminal Law Defense for Business Includes
Urgent Situation Review
We determine the procedural status of the participants, the subject of the review and the primary risks.
Analysis of Company Documents
We review contracts, payments, accounting and corporate documents, correspondence and the commercial logic of transactions.
Preparation for Questioning
We analyze the likely subject of questions, documents and factual circumstances before participation in an investigative action.
Support during Investigative Actions
We participate in questioning, searches, seizures and other procedural actions within the powers provided by law.
Work with Evidence
We identify documents and circumstances that confirm the commercial purpose of transactions and support the defense position.
Challenge Procedural Actions
We analyze the legality of investigative actions and decisions and, where grounds exist, use the legal mechanisms available for challenge.
Defense during the Preliminary Investigation
We formulate and consistently implement the defense position in the criminal case.
Protect the Interests of the Business
We take into account not only the position of a particular executive but also risks to the company, its property, settlements and current contracts.
A CASE MAY NOT YET EXIST
A Pre-Investigation Review Is Already a Stage at Which Future Evidence Is Formed
Before a criminal case is opened, law-enforcement authorities may obtain explanations, request documents, review materials and examine a crime report. For a business, this may look like an ordinary information request even though the factual picture for a future criminal case is already being formed.
At this stage it is important to understand:
- who initiated the review;
- which transactions are being examined;
- which documents law enforcement already has;
- which employees are giving explanations;
- whether there is a commercial or corporate conflict;
- which facts require documentary confirmation from the company.
A pre-investigation review is not a reason to panic, but it is also not a stage at which everything should be handed over without analysis.
IF THEY COME TO THE OFFICE
During a Search, Procedure and Documentation Matter More than Emotion
Once investigative actions have begun, business representatives should not obstruct lawful actions. At the same time, they should understand the legal basis for what is happening, monitor procedural documentation and record violations if they occur.
Legal Basis
We review the order or court decision and where exactly the investigative action is being conducted.
Participants
We record the persons participating in the search or seizure.
Seized Items
We monitor how documents, equipment, data carriers and other items are described.
Protocol
Before signing, we carefully review how the actual course of the investigative action and participants’ comments are recorded.
What is not recorded in procedural documents in time is significantly more difficult to prove later.
TESTIMONY
Witness Status Does Not Mean There Is No Criminal-Law Risk
An executive or employee may initially be summoned as a witness. But the questions may concern that person’s own actions, decisions and company transactions. Before questioning, it is therefore necessary to understand not only the formal status but also the real substance of the circumstances being examined.
The Constitution of the Russian Federation provides the right not to testify against oneself, one’s spouse and close relatives. But the decision on how to act during a particular interrogation should follow analysis of the situation, not be made automatically.
The main purpose of preparation is not to memorize prepared answers, but to understand the documents, facts and limits of one’s own knowledge.
THE KEY BOUNDARY
A Breached Contract Does Not by Itself Turn a Commercial Dispute into a Crime
Businesses regularly face unpaid money, breaches of contract, unsuccessful investments and conflicts between partners. The existence of losses or debt alone does not answer whether a crime occurred.
In a criminal case, the specific actions of individuals, their intentions and authority, the substance of agreements and the circumstances in which obligations arose matter.
Contracts
What the parties agreed and what obligations they assumed.
Performance
What actions were actually taken under the transaction.
Money
Where funds were directed and how this is documented.
Business Purpose
What commercial result the parties expected.
Authority
Who made decisions and who controlled the assets.
Correspondence
What the participants discussed before and after the conflict arose.
The defense is built on the facts of commercial activity, not only on the legal title of the contract.
BUSINESS SPEAKS THROUGH DOCUMENTS
The Commercial Logic of a Transaction Must Be Capable of Proof
In a criminal case, an investigator may see only a particular payment, contract or asset transfer. The defense must reconstruct the full business context of the transaction through documents.
Contracts and Appendices
Record the original agreements and obligations of the parties.
Primary Accounting Documents
Confirm actual performance of commercial transactions.
Bank Documents
Show the movement of funds and payment purposes.
Corporate Decisions
Help determine who made management decisions and on what basis.
Correspondence
Helps reconstruct the actual course of negotiations and performance.
Accounting Records
May confirm how the transaction was reflected in the company’s business activity.
The more complex the business model, the more dangerous it is to explain it only orally.
THE EXECUTIVE’S PERSONAL LIBERTY
For Certain Business-Related Offenses, the Law Sets Special Rules on Pre-Trial Detention
The Criminal Procedure Code of the Russian Federation contains special restrictions on the use of pre-trial detention for a number of offenses where they were committed in connection with entrepreneurial or other economic activity.
But the mere existence of a business or the position of company director does not automatically trigger these rules. The legal characterization, factual circumstances and connection of the alleged act with entrepreneurial activity matter.
The issue of preventive measures therefore requires a separate legal position rather than a general argument that “this is a business dispute.”
THE CRIMINAL CASE AND THE BUSINESS
It Is Necessary to Protect Not Only the Person but Also the Operating Company
Criminal proceedings may simultaneously affect an executive, documents, equipment, bank operations, property and relationships with counterparties. Business defense should therefore take into account the impact of investigative actions on ongoing operations.
Documents
What has been seized and what the company needs in order to continue operating.
Equipment
How seizure of devices affects access to information and business processes.
Property
Whether restrictions have been imposed on assets and how they affect commercial activity.
Counterparties
Which contracts and obligations continue to be performed during the investigation.
Employees
Who is being summoned for questioning and how consistently employees understand the factual circumstances.
Reputational Consequences
What information becomes known to partners, employees and other market participants.
Criminal defense of the owner and preservation of business manageability are related but not identical tasks.
EARLY MISTAKES
What Is Particularly Dangerous to Do without Understanding the Overall Picture
Give Lengthy Explanations “to Clear Everything Up”
Individual phrases may be evaluated outside the context the executive was trying to explain.
Delete Documents and Correspondence
Such actions may create additional risks and deprive the business of evidence supporting its own position.
Coordinate an “Identical Version” among Employees
The defense should be built on actual circumstances and documents, not on an artificially created story.
Ignore Procedural Documents
Orders, protocols, summonses and requests should be analyzed immediately.
Assume No Defense Is Needed Because You Were Summoned as a Witness
The actual substance of the questions may be more important than the initial procedural status.
At the beginning of criminal-law risk, it is more useful to preserve documents and understand the facts than to urgently invent an explanation of what is happening.
EXPERT COMMENTARY
Comments and Publications on This Practice Area
Nikolay Nemkov and the experts at Konsultant Law Firm comment in the media on issues related to this practice area.
The Cost of a Judicial Failure: How Rehabilitation and Compensation Work in Russia
Read Publication →Konsultant Law Firm
The firm has been practicing since 2007. We handle litigation and complex legal matters for businesses in Krasnoyarsk, Moscow and other regions of Russia.
Since 2007
in legal practice
1,000+
court proceedings
Across Russia
Krasnoyarsk • Moscow • other regions
DEFENSE STRATEGY
A Criminal Case about Business Cannot Be Analyzed Separately from the Business Itself
To defend an executive against an economic criminal allegation, it is not enough to read only the investigator’s procedural decisions. The underlying transactions, money flows, corporate authority, tax model, relationships with counterparties and actual decisions made inside the company must also be understood.
In complex cases, criminal defense therefore intersects with commercial litigation, tax, bankruptcy and corporate issues.
Our task is to translate a complex commercial history into evidence that matters in criminal proceedings.
HOW TO START
How the Work Begins
01You Describe What Happened
Who is showing interest in the company, what actions have already been carried out, who was summoned and which documents were requested or seized.
02We Analyze the Documents and Procedural Status
We determine the actual subject of the review, the participants and the principal risks.
03We Build the Strategy
We determine which evidence is needed, how to participate in further actions and which legal defense mechanisms to use.
04We Handle the Matter
We participate in procedural actions and consistently implement the selected defense position.
MANAGING PARTNER
Konsultant Law Firm Lawyers
Managing Partner, Konsultant Law Firm
Nikolay Nemkov
More than 20 years of practice in complex property and corporate disputes. Practicing insolvency practitioner.
QUESTIONS AND ANSWERS
Questions about Criminal Law Defense for Business
What should we do if company employees are summoned to give explanations?
First, it is necessary to understand what review they are being summoned in connection with, which events interest law enforcement and what documents are already available. Preparation can then focus on the specific questions and factual circumstances.
What should we do if a search is underway at the office?
Do not obstruct lawful investigative actions; obtain and review the procedural documents; arrange for defense counsel to participate where possible; carefully record the course of the actions, the list of seized property and comments on the protocol.
Can I refuse to give testimony?
The Constitution of the Russian Federation allows a person not to testify against oneself, one’s spouse and close relatives. But the procedural tactics for a particular interrogation depend on the person’s status and the circumstances of the case.
Do I need legal defense if I am summoned as a witness?
Formal witness status does not exclude situations where questions concern the executive’s or employee’s own actions. It is therefore sensible to assess the real criminal-law risk before questioning.
Can an ordinary contractual dispute turn into a criminal case?
Yes. A crime report may arise against the background of a commercial conflict. But breach of contract or the existence of a debt does not by itself prove that a crime was committed. The actions and intentions of the participants must be analyzed.
Can an entrepreneur be placed in pre-trial detention?
Yes, where the statutory grounds exist. At the same time, the Criminal Procedure Code of the Russian Federation establishes special rules on the use of pre-trial detention for a number of offenses connected with entrepreneurial and economic activity.
Which documents are needed for the initial review?
Procedural documents, summonses, law-enforcement requests, documents relating to the transactions under review, contracts, payment documents and a short chronology of events.
Do you protect only the executive or also the interests of the company?
The strategy may address both areas: personal defense of the executive and the legal consequences of the investigation for the company’s operations and property.
URGENT REVIEW
We Will Review the Criminal-Law Risk for the Executive and the Business
Briefly describe what happened: a review, summons for questioning, search, seizure of documents or an already opened criminal case. State which procedural documents you have.