Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.41 N° 77
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2023
Recibido el 18/02/23 Aceptado el 15/03/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 41, Nº 77 (2023), 144-157
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Procedure in absentia in criminal
proceedings for legalization (laundering)
of taxes derived from crime
DOI: https://doi.org/10.46398/cuestpol.4177.10
Serhiy Trach *
Oleksandr Nahorniuk-Danyliuk **
Sergii Rossokha ***
Dmytro Shumeiko ****
Yurii Yermakov *****
Abstract
The article was aimed at analyzing the characteristics of the
procedure for conducting a special investigation (in absentia) in
criminal proceedings concerning the legalization (laundering)
of criminally obtained taxes. Attention is drawn to the fact that
the concepts of “special criminal procedure”, “special pre-trial
investigation”, “special court procedure” are not formulated by the legislator,
but the legal norms concerning their practical implementation are found in
various parts of the Criminal Procedure Code of Ukraine. It is understood
that in the procedural decision to clarify the concept of “special criminal
procedure” it is necessary to be guided by the general concept of “criminal
procedure” with characteristic features for the special criminal procedure.
It was concluded about the imperfection of the legislative provisions
regulating the matter under consideration, in particular, the basic concepts
establishing the basis for their application, what procedural acts should be
performed in the absence of the accused? What is the procedural term of
such an investigation? This question is not dened. The proposed changes
to the legislation are aimed at improving the procedural order of a pre-trial
investigation in criminal proceedings related to the legalization of taxes
obtained by criminal means.
* Candidate of Juridical Sciences, Associate Professor of the Department of Criminal Procedure of the
National Academy of Internal Aairs (Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0002-7548-
1027
** Candidate of Juridical Sciences, Lecturer of the Department of Civil Law Disciplines of the National
Academy of Internal Aairs (Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-0003-1511-7140
*** Candidate of Juridical Sciences, Research Ocer at the Scientic Institute of Public Law (Kyiv,
Ukraine). ORCID ID: https://orcid.org/0000-0001-9453-1440
**** Doctor of Judicial Sciences, Associate Professor, Professor of the Department of Criminal Procedure of
the National Academy of Internal Internal Aairs (Kyiv, Ukraine). ORCID ID: https://orcid.org/0000-
0002-3185-9956
***** Doctor of Juridical Sciences, Associate Professor, Research Ocer of the Department of Scientic and
Legal Expertise and Law Drafting of the Scientic Institute of Public Law. ORCID ID: https://orcid.
org/0000-0002-9400-0604
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Vol. 41 Nº 77 (2023): 144-157
Keywords: procedural default; money laundering; tax laundering;
special criminal procedure; special pre-trial investigation.
Procedimiento en rebeldía en procesos penales por
legalización (blanqueo) de impuestos procedentes de
delitos
Resumen
El artículo tuvo por objeto analizar las características del procedimiento
para la realización de una investigación especial (en rebeldía) en los
procesos penales relativos a la legalización (blanqueo) de impuestos
obtenidos por vía delictiva. Se llama la atención sobre el hecho de que
los conceptos de “procedimiento penal especial”, “investigación previa al
juicio especial”, “procedimiento judicial especial” no están formulados
por el legislador, pero las normas legales relativas a su implementación
práctica se encuentran en varias partes del Código de Procedimiento Penal
de Ucrania. Se entiende que en la decisión procesal de aclarar el concepto
de “procedimiento penal especial” es necesario guiarse por el concepto
general de “procedimiento penal” con rasgos característicos para el proceso
penal especial. Se concluyó acerca de la imperfección de las disposiciones
legislativas que regulan el asunto en consideración, en particular, los
conceptos básicos que establecen las bases para su aplicación, ¿Qué actos
procesales deben practicarse en ausencia del imputado? ¿Cuál es el plazo
procesal de tal investigación? Está cuestión no está denida. Los cambios
propuestos a la legislación tienen como objetivo mejorar el orden procesal
de una investigación previa al juicio en los procesos penales relacionados
con la legalización de impuestos obtenidos por medios delictivos.
Palabras clave: rebeldía procesal; lavado de activos; blanqueo de
impuestos; procedimiento penal especial; investigación
especial previa al juicio.
Introduction
Abuses in the eld of public nance are very dangerous, as they cut the
economic possibilities of the country, nancial welfare of the people and
build an unlovable image for Ukraine in the international arena (Sukhonos
et al., 2021).
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Serhiy Trach, Oleksandr Nahorniuk-Danyliuk, Sergii Rossokha, Dmytro Shumeiko y Yurii Yermakov
Procedure in absentia in criminal proceedings for legalization (laundering) of taxes derived from crime
The problem of legalization (laundering) of money obtained by criminal
means has become particularly important or Ukraine during the last
decade, since the criminalization of the economy has become one of the
key threats to the economic security of our State. As Reznik et al. (2021)
correctly stress, money laundering is extremely dicult to investigate and
prosecute; besides, the social danger of this phenomenon has recently been
revealed in new aspects.
A few years ago, the majority of criminal oenses of this category
were committed with the aim of further using the received income in
entrepreneurial and other economic activities for prot. Subsequently,
funds or other property of criminal origin began to be used to nance
terrorism, illegal arms tracking, organization of contract killings,
nancing of marginal separatist groups and other serious and especially
serious crimes.
Therefore, in order to ensure quick, complete and impartial investigation,
bringing guilty persons to justice, pre-trial investigation agencies and courts
increasingly turn to “new” procedural forms, in particular, special pre-
trial investigation (in absentia). The legal nature of such an investigation
is extremely complex and was considered by many foreign and Ukrainian
scientists at the level of dissertation studies, in monographs, educational
and methodological publications, a number of scientic articles and other
publications.
However, due to modern changes in the legislation, seeking new
“technological” and more socially dangerous methods of criminal activity
for the state and its citizens by oenders, the increase in the borders of
temporarily occupied territories and the number of criminals hiding in
them in order to avoid criminal liability, a targeted study requires a special
pre-trial investigation (in absentia), regarding specic types of criminal
oenses specied in Part 2 of Article 297-1 of the Criminal Procedure Code
of Ukraine (Law of Ukraine No. 2465-IX, 2012).
Thus, the purpose of the article is a theoretical and practical analysis
of the procedural order of a special pre-trial investigation (in absentia)
in criminal proceedings regarding the legalization (laundering) of taxes
obtained through criminal means.
1. Methodology
The complex of general scientic and special research methods was used
to achieve the set goal, fulll the stipulated tasks and ensure scientically
based research results, which, complementing each other, provided an
objective analysis of the research subject, taking into account the specics
of the chosen topic. Thus, the following methods were applied:
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Historical and legal approach helped to study the genesis of the
institution of special pre-trial investigation (in absentia) in general and
in the investigation of certain crimes in the eld of ocial and economic
activity in particular.
Logical and normative method was useful for substantiating and
formulating amendments and supplements to the relevant provisions of the
Criminal Procedure Code of Ukraine.
Comparative analysis approach was used when summarizing the views
of scientists on the procedure of special pre-trial investigation of criminal
oenses “in absentia”, in particular legalization (laundering) of property
obtained through tax evasion
The method of systematic analysis made it possible to analyze legal norms
governing the procedure for performing special pre-trial investigation.
With the help of statistical method, the number of pre-trial investigation
into the legalization (laundering) of property in dierent years and the
quantity of indictments sent to court were revealed.
Formal and dogmatic method was applied for researching the concepts
of the criminal procedural legislation of Ukraine, namely “special criminal
proceedings”, “special pre-trial investigation”, “special court proceedings”,
“hiding from investigative bodies and trial” and “evasion of criminal
responsibility”.
2. Literature Review
In the research by Piestsov (2012) it is noted that because of improper
procedural development of the proceedings in absentia the criminal
process of Ukraine and with the aim of improving the legal regulation of
this institution, it is necessary to supplement the Criminal Procedure Code
of Ukraine.
Matviievska (2013), taking into account the needs of law enforcement
practice and the protection of the rights and legitimate interests of the
victim and the civil plainti, stressed on the need to expand the existing
grounds for the application of the in-absentia procedure and regulatory
consolidation, in particular, of the accused (defendant) stay outside Ukraine
and evasion of summons.
Nahorniuk-Danyliuk (2016) analyzed the signs and grounds for special
pre-trial investigation and certain features of criminal proceedings in the
absence of the accused in a criminal trial in certain European countries and
countries participating in the Commonwealth of Independent States.
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Procedure in absentia in criminal proceedings for legalization (laundering) of taxes derived from crime
Malenko (2019) investigated the procedural and legal characteristics of
special pre-trial investigation as a form of in absentia criminal procedure
and its improvement.
Anne Schneider (2019) studied the solutions that were developed in the
EU to solve the problem of dierent standards of in absentia proceedings
in cross-border criminal proceedings with particular regard to the
implementation of the European arrest warrant issued to enforce a decision
arising from in absentia proceedings.
The researcher Lorena Bachmaier Winter (2019) analyzed the
provisions of criminal proceedings in absentia, enshrined in the EU
Directive 2016/343 of March 9, 2016 on strengthening certain aspects of
the presumption of innocence and the right of persons to be present during
criminal proceedings, in order to assess their impact on the protection of
fundamental rights in the EU countries and solve the issue of establishing
a higher standard of human rights requirements in the EU than that
implemented in the ECHR practice.
In turn, Serena Quattrocolo and Stefano Ruggeri (Billis and Gkaniatsos,
2019) investigated the inuence of European legislation, which includes
the practice of the ECHR, framework decisions and EU directives on the
domestic national legal regulation of criminal proceedings in absentia.
3. Results and Discussion
The instability of the macroeconomic situation in Ukraine, periodic
crisis in the economy contribute to the formation and development of a
strong shadow sector in the national economy. Its ctitious component,
which lies in the withdrawal of signicant nancial funds from the legal
economic sector by illegal means, redistribution of billions of prots in
favor of individual business entities and the outow of capital abroad,
has now become global. All this contributes to increasing the threat to the
economic security of the State, strengthening the already existing socio-
economic recession. Such crises have not spared taxation.
Taxes, fees (mandatory payments) are the most important tool of the
State, which guarantees the existence of society; accordingly, the further
development of the economy of Ukraine depends on the eectiveness of
legislative acts ensuring the legal regulation of the use of this tool. The
problem of legalization (laundering) of property obtained through tax
evasion has acquired particular signicance for Ukraine during the last
decade, as it is associated with the commission of criminal oences of
varying severity and consequences, with the presence of oshore zones,
with sophisticated tax evasion schemes, which has a devastating eect on
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both the development of the national economy and the implementation of
global international programs.
Precisely because of this, a component of the goal of enshrining the
possibility of carrying out special pre-trial investigation (in absentia) in
is to increase the eectiveness of the investigation of certain crimes, in
particular, in the eld of ocial and economic activity, since the scale of
legalized (laundered) capital is currently so signicant that it is about the
threat to the stability of the entire international nancial system. Thus,
according to UN data, 37 trillion dollars were found in oshore zones, of
which 11.5 trillion dollars (31%) belong to individuals.
This gives reason to conclude about the annual non-payment of about
250 billion dollars of taxes. In particular, according to the Oce of the
Prosecutor General of Ukraine (2022), in 2014, pre-trial investigation into
the legalization (laundering) of property was conducted in 296 proceedings
and only 14 indictments were sent to court; in 2016 – 159 (24); 2017 – 243
(42); 2018 – 242 (54); 2019 – 283 (68); 2020 – 348 (73) (+ 23% compared
to 2014); 2021 – 395 (103); 2022 – 437 (146). Besides, during the analyzed
period, employees of the State Fiscal Service of Ukraine ceased the illegal
activities of 297 conversion centers, which converted 81.9 billion UAH, and
the damage from their activities amounted to more than 14.7 billion UAH.
However, this type of crime is characterized by the stealth of the
various ways in which it is performed under the guise of ocial nancial
transactions (Arkusha, 2012), the preservation of a “secret” for a long
period of time, a limited circle of participants in criminal activity who do
not allow the detection and termination of the committed act, which causes
a signicant share of latent criminality, and in the case of identication of
persons involved in this event, it turns out that a signicant part of them is
hiding in the temporarily occupied territory of Ukraine, or in the territory of
a state recognized by the Verkhovna Rada of Ukraine as an aggressor state.
The procedure of special pre-trial investigation of criminal oenses
“in absentia” is designed to overcome the deliberate absence of a suspect
accused in criminal proceedings, and further prosecution of the perpetrator
in accordance with the rules of substantive law. As Kopersak (2021)
successfully pointed out, this proceeding is the result of centuries-old
attempts to establish an absentee investigation and conviction of persons
guilty of a crime.
The ECHR recognizes proceedings in absentia as a means of protecting
legal order, if the human rights guaranteed by the European Convention
on Human Rights are respected. That is, the procedure itself does not
contradict the Convention, and its implementation must take place without
violating the Convention’s guarantees. At the same time, along with the
recognition of the in absentia procedure, the ECHR consistently adheres
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Serhiy Trach, Oleksandr Nahorniuk-Danyliuk, Sergii Rossokha, Dmytro Shumeiko y Yurii Yermakov
Procedure in absentia in criminal proceedings for legalization (laundering) of taxes derived from crime
to a rm position regarding the State’s duty to ensure that the rights of the
suspect and the accused are respected. However, legal regulation of special
criminal proceedings in Ukraine has signicant gaps, contradictions and
fragmentation, as well as inconsistency with the modern development of
ideas about human rights.
The concepts of “special criminal proceedings”, “special pre-trial
investigation”, “special court proceedings” are not formulated by the
legislator, but the corresponding norms regarding practical implementation
of the main components of this institution are enshrined in dierent parts
of the Criminal Procedure Code of Ukraine (Law of Ukraine No. 2465-IX,
2012).
It is understood that in the procedural decision to clarify the concept
of “special criminal proceedings” it is necessary to be guided by the general
concept of criminal proceedings, which shall mean pre-trial investigation
and court proceedings, procedural actions connected with commission of
an act specied in the Ukrainian law on criminal liability (Par. 10, Article 3
of the Code of Criminal Procedure of Ukraine) with characteristic features
for special criminal proceedings dened by this Code. In view of this, we
oer to supplement Art. 3 (Denition of the main terms of the Code) with
clause 10-1 of such content:
Part 10-1. Special criminal proceeding is a special order of criminal
proceedings that includes specic pre-trial investigation and court
proceeding and provides for the procedure for their implementation in
cases provided for by the Criminal Procedure Code of Ukraine regarding
the exclusive list of crimes, in relation to a suspect (accused), except for a
minor, who is hiding from the investigative authorities and the court on
the temporarily occupied territory of Ukraine, on the territory of a state
recognized by the Verkhovna Rada of Ukraine as an aggressor state with a
view to avoiding criminal responsibility and/or being sought internationally,
subject to the general principles of criminal procedure for the purpose of
ensuring quick and eective protection of the individual, society and the
State from criminal oences.
It is not considered appropriate to highlight special pre-trial investigation
as a form of pre-trial investigation along with a pre-trial investigation and
an inquiry, since it is covered by the concept of “pre-trial investigation”, but
not identical to it, because although it is carried out according to its rules,
but given the unique nature of special pre-trial investigations.
The data by experts and the results of the operatives’ survey indicate
that the facts of legalization (laundering) of property obtained through tax
evasion become known: from the materials of tax inspections (79%); based
on the results of operational and search activities (46%); from materials of
other criminal proceedings (21%); from ocial appeals by law enforcement
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agencies (17%). The data obtained in this way mostly contain information:
on the use of ctitious companies (63%), carrying out of commodity-free
transactions (45%), articial formation of tax credit (35%).
The procedure of special pre-trial investigation (in absentia) is regulated
by a separate chapter of the Criminal Procedure Code of Ukraine (24-1
“Features of special pre-trial investigation of criminal oenses” of Chapter
III “Pre-trial investigation”) (Law of Ukraine No. 2465-IX, 2012), and in
criminal proceedings regarding the legalization (laundering) of taxes derived
from criminal activities is possible only in relation to the person who has
acquired the status of a suspect, i.e., in relation to a person whose suspicion
has been duly reported in accordance with the procedure provided for in
Art. 276 – 279 of this Code; or a person against whom a report of suspicion
has been made, but it has not been handed over for lack of locating, but
measures have been taken to serve it in the manner provided for by the
criminal procedural legislation.
In this regard, Tatarov (2014) reasonably emphasizes the fact of reporting
suspicion by e-mail, fax, telephone, or telegram does not guarantee delivery
of the notication personally, therefore, a report of suspicion cannot be
sent in this order.
In practice, if it is not possible to serve a notication of suspicion in
person, the method of notication by mail with a declared value with a
description of the attachment and a notice of delivery is widely used (Alenin
and Glovyuk, 2014). The possibility of sending a notication in this way
is also conrmed by judicial practice; as for the procedure for sending
summons, then, according to Part 1, Art. 297-5 of the Criminal Procedure
Code of Ukraine (Law of Ukraine No. 2465-IX, 2012), summons are sent
to the suspect at the last known place of residence or stay with mandatory
publication in the mass media of national sphere of distribution and on the
Prosecutor General’s Oce ocial website. The suspect is considered to be
properly acquainted with the content of summons from the moment of its
publication.
I t should be noted that the procedure for carrying out special pre-
trial investigation (in absentia) in criminal proceedings regarding the
legalization (laundering) of taxes received from criminal means is possible
only in relation to fugitives from investigation and trial in temporarily
occupied territory of Ukraine, in the territory of the state recognized by the
Verkhovna Rada of Ukraine as an aggressor state with a view to avoiding
criminal responsibility and/or being sought internationally.
There is no legal denition of such concepts as “hiding from investigative
bodies and trial” and “evasion of criminal responsibility”. However, the
Grand Chamber of the Supreme Court in the decision of the case No.
598/1781/17 (2020) noted that evasion of investigation or trial should
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Procedure in absentia in criminal proceedings for legalization (laundering) of taxes derived from crime
be understood as any deliberate act by a certain person with the aim of
avoiding of criminal responsibility for the committed crime, forcing law
enforcement agencies to take measures aimed at locating and detaining the
perpetrator (Case No. 5-1ks15, 2015).
Regarding conducting special pre-trial investigation into the declaration
of a suspect for the international search, we should note that an international
search is a procedural form of international cooperation implemented
within the framework of the functioning of the International Criminal
Police Organization (Interpol), the main task of which is to search for a
specic object or a person (Interpol, 1956).
In our opinion, due to the fact that the presence of a suspect in an
international search warrant is the basis for conducting special pre-trial
investigation, during the consideration of a petition for conducting a special
pre-trial investigation, the investigating judge is obliged to establish this
fact and indicate how this is conrmed. Moreover, it is the fact that the
suspect has been made public in an international search, and not the fact of
applying for such a declaration.
On September 22, 2020, the Instruction on the procedure for the use of
the information system of the International Criminal Police Organization -
Interpol by law enforcement agencies of Ukraine entered into force, which
does not include as a reference that it is through the channels of Interpol
that the international search is carried out, and the concept of international
search in general (Order No. 613/380/93/228/414/510/2801/5, 2020).
The analysis of the provisions of Part 2, Art. 297-1 of the Criminal Code
of Ukraine (Law of Ukraine No. 2465-IX, 2012) allows to state that special
pre-trial investigation (in absentia) in criminal proceedings regarding the
legalization (laundering) of taxes received from criminal means cannot be
carried out against a minor suspect. Without analyzing the legal nature of
criminal proceedings against minors in detail, while taking into account the
content of the provisions of Chapter 38 “Special Procedures of Criminal
Proceedings” of the Criminal Procedure Code of Ukraine, as well as the
views of scientists on this issue (Tromenko 2012), it can be stated that
criminal proceedings against minors from the position of dierentiation of
criminal procedural form is an example of its complexity, that is, it refers to
proceedings with enhanced procedural guarantees.
In view of the above, we agree with the view by Piestsov (2012) that
pre-trial investigation without the suspect cannot be carried out in cases
of crimes committed by minors, because minors are the subjects of
proceedings, which strengthens their procedural guarantees, while the
implementation of a special pre-trial investigation, on the contrary, involves
the simplication of the procedure for its implementation.
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It should be added that if the legalization (laundering) of taxes received
from criminal means is investigated along with other types of criminal
oenses (not specied in Part 2, Article 297-1 of the Criminal Procedure
Code of Ukraine) (Law of Ukraine No. 2465-IX, 2012), then they may be
investigated together with those, in respect of which the implementation of
a special pre-trial investigation is allowed, since any pre-trial investigation
can be attributed to those that may negatively aect the completeness of
pre-trial investigation based on a subjective approach of the prosecutor.
However, in any case, the implementation of special pre-trial
investigation (in absentia) in criminal proceedings regarding the oense
under consideration, requires the investigative judge to issue a separate
procedural decision (resolution), without which it is impossible, as well as
mandatory participation of defense counsel in criminal proceedings.
Attention should be paid to the fact that, in contrast to the requirements
that are put forward to the motions by investigator, (prosecutor) on the
application of preventive measures, Art. 297-2 of the Criminal Procedure
Code of Ukraine (Law of Ukraine No. 2465-IX, 2012) does not include the
duty of the investigator to conrm that the suspect has been served with a
copy of the application and materials’ justifying the need for special pre-
trial investigation, i.e., the defense counsel is not entitled to examine the
content of the petition and the materials attached to it.
The above makes it impossible for counsel to form a defense position
prior to the commencement of the defense, and therefore, in our opinion,
it is necessary to provide for the mandatory provision of such materials not
later than 3 days before the application is considered (by analogy with Part
8, Article 135 regarding summons).
In accordance with this, Part 1, Art. 297-3 of the Criminal Procedure
Code of Ukraine (Law of Ukraine No. 2465-IX, 2012) (consideration
of the motion on conducting special pre-trial investigation) should be
supplemented with Par. 3, which we propose to amend to read as follows:
copy of the application and materials justifying the need for special pre-trial
investigation shall be provided to the suspect’s defense counsel not later
than three days before the application is considered.
Moreover, according to Clause 8, Part 2, Art. 52 of the Criminal Procedure
Code of Ukraine (Law of Ukraine No. 2465-IX, 2012), the participation
of a defender is mandatory in criminal proceedings against persons who
are subject to special pre-trial investigation or court proceedings, from
the moment the corresponding decision is made. At the same time, the
consideration of the request for special pre-trial investigation takes place
with the mandatory participation of a defense attorney. Thus, there is a
clear inconsistency with the provisions of Clause 8, Part 2, Art. 52 with
the provisions of Part 1, Art. 297-3 of the abovementioned legal act in
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Procedure in absentia in criminal proceedings for legalization (laundering) of taxes derived from crime
dening the moment from which the participation of the defense counsel
is mandatory.
Taking into account the fact that special pre-trial investigation is linked
to the grounds clearly dened in the abovementioned legal act and is
possible in relation to the person who has already acquired the status of a
suspect, that is to say, there are no grounds for conducting special pre-trial
investigation against the person at the time of notication, we consider it
incorrect to link the moment from which the participation of the defender
in the case of a special pre-trial investigation is required with the moment
of notifying the person of the suspicion.
In order to ensure legal certainty, there is a need to bring the provisions
of Clause 8, Part 2, Art. 52 of the Criminal Procedure Code of Ukraine (Law
of Ukraine No. 2465-IX, 2012) in line with the provisions of Part 1, Art.
297-3 of the said Code of Ukraine by enshrining mandatory participation
of a defender in special pre-trial investigation from the moment the
investigating judge receives a request to conduct it.
It should be added that in accordance with Part 6, Art. 297-4 of the
Criminal Procedure Code of Ukraine (Law of Ukraine No. 2465-IX,
2012), information on suspects in respect of whom the investigating judge
has ruled to conduct a special pre-trial investigation shall be entered into
the Unied Register of Pre-Trial Investigations immediately, but not later
than 24 hours after the eective date of the ruling.
However, the implementation of these legislative prescriptions in
practice faces signicant diculties, since there is no technical possibility
to make a corresponding mark in the Unied Register of Pre-Trial
Investigations; that is why judges often return the indictment to the
prosecutor after considering a request for a special trial, owing to the fact
that the pre-trial investigation register does not contain information on the
entry of information about special pre-trial investigation into the Unied
Register. By the way, this also applies to other types of criminal oenses, of
which the procedure in absentia is possible.
If the suspect, in respect of whom the investigating judge issued
a decision to carry out special pre-trial investigation, is detained or
voluntarily appeared before the pre-trial investigation body, further pre-
trial investigation is carried out in accordance with the general rules
provided for by the Criminal Procedure Code of Ukraine (Law of Ukraine
No. 2465-IX, 2012). We established that almost 80% of the initiative to
commit the crime came from the leaders of business entities.
The number of members of such criminal groups is determined in
accordance with the need for the distribution of roles, taking into account
the technology of specic criminal activity. The formation of such groups is
usually performed at the initiative of the organizers (68%). In 22% of cases,
155
CUESTIONES POLÍTICAS
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criminal schemes involved ctitious persons as nominal owners of business
entities, secretaries and customer service managers who were not aware
of the plans of the organizers, but provided relevant services for one-time
remuneration (bonuses) or under the pretext of employment.
Conclusions
Inecient work of investigative and operative units along with objective
diculties, is also associated with the lack of scientically based methods of
investigation, including in the part of the implementation of the procedure
in absentia. The investigation of such crimes involves planning of this
activity as the main method of organizational and managerial activity in
criminal proceedings, which determines the ways, methods, means, forces
and terms of successful achievement of the previously set goal and the
mandatory creation of an investigative and operational group.
Obtaining evidence from material sources is carried out by conducting
a search, temporary access to things and documents (Chapter 15 of the
Criminal Procedure Code of Ukraine) (Law of Ukraine No. 2465-IX, 2012),
initiating the requisition of documents, audit conclusions and inspection
reports (in accordance with Part 2, Article 93 of this Code), investigative
inspection, interrogation, examinations, etc.
The procedure for carrying out special pre-trial investigation (in
absentia) in criminal proceedings regarding legalization (laundering) of
taxes received from criminal means is regulated by a separate chapter of
the Criminal Procedure Code of Ukraine and is performed after separate
procedural decision (resolution) by the investigating judge with the
mandatory participation of the defense counsel against an adult who has
acquired the status of a suspect and is hiding from the investigation and
trial authorities in the temporarily occupied territory of Ukraine, in the
territory of the country recognized by the Verkhovna Rada of Ukraine as
an aggressor state for the purpose of evading criminal responsibility and/
or who was put on international wanted list, and also provides for a special
summons procedure for and delivery of procedural documents.
Along with the establishment of the above-mentioned grounds for
initiating in absentia procedure at the initial stage of the investigation of
legalization (laundering) of taxes received from crime, it is necessary to
establish, in particular: a) the fact of criminal actions (evasion, funds in
the form of a budgetary reimbursement of VAT, the implementation of a
nancial transaction aimed at providing a legitimate type of ownership,
use and disposal of this property); b) documents (tax and accounting,
economic, registration, electronic; authorizing persons to dispose of
nancial resources, etc.).
156
Serhiy Trach, Oleksandr Nahorniuk-Danyliuk, Sergii Rossokha, Dmytro Shumeiko y Yurii Yermakov
Procedure in absentia in criminal proceedings for legalization (laundering) of taxes derived from crime
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 77
