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Дерегуляція на практиці. The ukrainian journal of business law. Дмитро Гадомський

Опубліковано мовою оригіналу

Ukraine’s statements on deregulation are finally being translated into legislation. The Acts of Ukraine On Licensing of Certain Types of Business Activity of 2 March 2015, No.222-VIII and On Changes to Some Acts of Ukraine on Facilitating Business (Deregulation) of 12 February 2015, No.191-VIII have already been signed by the President of Ukraine.

The UJBL initiated discussion on significant provisions of these comprehensive documents, which are not widely commented on in the media. We suggest dwelling specifically on the proposed initiatives.

According to Act No.191-VIII, some changes were made in the Code of Criminal Procedure of Ukraine on the procedure for seizing telecommunication equipment. How could this affect the practices of seizing computer servers by law-enforcers? Is there any risk that they might return to the practices of previous years?

Dmytro  Gadomsky,  attorney-at-law, partner, the Juscutum Attorneys Association, head of the IT Law Committee of the Lviv IT Cluster 

On 24 March 2015 the Act was sent for signature by the President. It will finally allow the Ukrainian IT business to get rid of risk of equipment seizures within criminal proceedings. 

For a long period of time now Ukrainian authorities have practiced seizures of computer equipment (servers) during searches in offices of IT companies under investigation of copyright infringement, distribution of pornography, etc.

Despite the need for only a few gigabytes the authorities seized all servers, which literally paralyzed the business of the company. The explanation for such actions refers to the purpose of investigation, which turns out to be more about pressure on an IT company than about the investigation of a particular crime. 

The above-mentioned bill replaces seizure of servers with copying of information. The temporary seizure of the computer equipment is still possible only provided that: (1) it is necessary for the investigation of physical properties, which are relevant for criminal proceeding, and (2) there is a court order. 

However, the notion of “physical properties relevant for criminal proceedings” can hardly be named as definite and still leaves much reservation on the part of state authorities. This may potentially lead to different interpretations and continuous abusive practices. The first text of the bill was clearer, and sanctioned equipment seizures only when there are physical traces of the crime on them (finger prints, traces of blood, etc.).

Sourse: The ukrainian journal of business law