Periodically, stories are heard from different regions of Ukraine about attempts by raiders to seize business, property or land, etc. According to Opendatabot, there are about 400 raids in Ukraine every year. Stories with different scales – from small farms to systemic, city-forming business.
Despite the existence of criminal liability under a number of articles of the Criminal Code of Ukraine for raiding actions (Articles 205-1, 206-1, 206-2 and others), unfortunately, raiding currently exists in Ukraine. Moreover, in our opinion, no matter how many changes are made to the legislation to increase the responsibility for raiding or eliminate gaps that allow the use of raiding schemes, raiding as a phenomenon will still exist. First of all, because the schemes are becoming more sophisticated and at first glance look like legal actions – through the application of court decisions, the involvement of law enforcement agencies, security companies, cancellation or entry of registration records, etc. Therefore, it is extremely difficult to prosecute raiders.
Because of this, the question of methods of combating it remains relevant.
Methods of combating raiding.
As a rule, raider seizures are prepared in advance, at the same time, business or property owners do not know about it and learn about the fact of taking active action against them. Therefore, in most cases they are not ready to counteract, because of which they lose extremely valuable time in search of lawyers, law enforcement officers, security, development of protection strategies, etc. At the same time, the opponent is already on the threshold of the enterprise, in the field with the finished harvest or your house – came to take someone else’s. Therefore, to prevent the loss of property, it is necessary to take precautions in advance, or at least have access to people and things that will help in this.
Access to the team of lawyers.
In any case, the fight against raiding involves a team of lawyers / attorneys whose task is to develop and implement an effective strategy to protect business / property. Therefore, the owner of a business or property should always have access to such a team, so that in the event of a problem situation to be able to quickly involve it, and not waste time searching. At the same time, it should be noted that it is cheaper and more efficient to finance your security in advance than to pay for protection already in the process of the acute phase of the raider capture. Therefore, one of the tips is to cooperate with lawyers, at least on the issues of daily monitoring of actions on your property. As a rule, outsourcing law firms, among other legal services, provide services for monitoring open databases (registers of legal entities, registers of court decisions, registers of real estate and registers of encumbrances on movable property, cadastral map, etc.). Having a signal of registration actions not authorized by the property owner, you will be able to publicize the problem and have, even if short, but time to prepare for the attack. If the team of lawyers is experienced, they will be able, even in a short time, to take a number of steps to protect assets and set certain safeguards. For example, to open counter-criminal proceedings and seize property to prevent its seizure by raiders. Such actions will, firstly, prohibit the seizure of your property and the transfer of your property to a third party (a mandatory condition is the introduction of a ban in the relevant registers), and secondly, will provide additional criminal liability for raiders for seizure of your property.
Of course, you can’t limit yourself to the cost of outsourcing, because the fight against raiding involves more money than monthly payments. But it will still be much cheaper than financing the fight against raiding at a time when the raiders are already on your doorstep.
Any raider does not like to pay too much attention to the situation of capturing the object. Why? Because, first, the information situation reaches the leadership of the region, the state, law enforcement agencies. In turn, the issue is brought under control and the situation is reported. One way or another, but on the ground, law enforcement officers should act to prevent illegal actions, and not silently monitor them. Secondly, the attention of the media and society to a particular situation forces both opponents and law enforcement officers to act in the legal field. And, as a rule, if before raising publicity it was possible to receive the illegal document, then after – it becomes difficult or much more expensive (both one plays on a hand to you). Judges are afraid to make illegal decisions, law enforcement officers are extremely cautious, and fighters hired by opponents also reduce arbitrariness in behavior, because they understand that they can later become scapegoats for all illegal actions (it is worth mentioning the story with Vadim Titushko).
Publicity complicates the actions of raiders, so the more publicity, the better for you.
Appeal to all possible organs.
As mentioned above, publicity gives you the opportunity to draw attention to your problem of society, the media, and other bodies that have influence and monitor the situation. At the same time, in order to attract them to the village protection, you need to withstand a formal application procedure. Such bodies or persons include the Business Ombudsman, heads of relevant committees of the Verkhovna Rada of Ukraine (on law enforcement, anti-corruption policy, agrarian and land policy, TSC on investor protection, etc.), the Anti-Raider Commission of the Ministry of Justice of Ukraine, NGOs and others. Of course, in addition to the above, it is also necessary to send appeals and complaints to the President of Ukraine, the Office of the Prosecutor General, the Cabinet of Ministers of Ukraine, and if the raid involves government agencies and officials, the crime must be submitted to the DBR or NABU. It should be noted that your application will not always automatically open criminal proceedings, so you should be prepared to commit such actions by court order. In the future, through requests, to stimulate the investigation to actively investigate.
Access to the owner’s reserve capital.
Any struggle requires financial costs. At the same time, one of the areas that will be targeted by the raider seizure is the blocking of the company’s economic activities and, as a consequence, the impossibility of obtaining income / revenue to direct it to finance measures to combat raiding. Therefore, the owner must always have reserve capital to cover the most necessary costs in the event of a complete blockade of the business. At least the reserve capital should be enough to cover the costs of 3-5 months of struggle.
Openness in communication with creditors.
Blocking businesses by raiders, among other things, can deprive them of the ability to pay employees’ salaries, current liabilities or loans. This, in turn, can lead to the recovery by creditors of debts that you have served in good faith, but for objective reasons have become overdue. In this case, the victim of the raid gets an additional problem – the recovery of assets by creditors. In addition, employees who do not receive a salary for several months will also refuse to perform their current job or will be fired and will file lawsuits to recover wage arrears. All of the above makes it difficult for the owner to maintain workflows in the enterprise or business.
Therefore, in order to maintain moral authority in front of employees and show creditors that you are doing everything possible to correct the situation and protect the business, be as open as possible to them, hold regular meetings and report on steps. At a minimum, this will allow you to significantly delay the deadlines for creditors’ claims, and at most – to avoid early recovery, if creditors are convinced of your good faith and correctness. Also, if your lenders are banks or influential counterparties (business owners), make the most of their leverage to help you. After all, if you lose a business or property, lenders may also lose their money, so they are interested in helping you.
Identifying business weaknesses before a raider attack.
Business owners should periodically engage professionals to analyze and identify vulnerabilities that may fail in the event of a stressful situation for the business. These include:
• Lack or poorly organized internal security, which will allow raiders to quickly seize the company or other objects;
• keeping records only in paper form, which in case of seizure of documents will complicate the reporting of the enterprise, payroll, payment of taxes or other;
• double-entry bookkeeping and storage of funds in the company’s safe, which will lead to their inevitable withdrawal and the opening of additional criminal proceedings;
• Lack of effective protection of databases or equipment, which will lead to their removal or destruction and, as a consequence, complicate reporting, will lead to the loss of information, mail, customer base, etc .;
• the presence of a conflict between employees, which will inevitably lead to the disclosure of confidential (drain) information, etc.
In order to avoid these problems as much as possible, it is necessary to involve specialists and conduct a “forensic” procedure at the enterprise (in its broad sense). Such a team may include auditors, security and cybersecurity professionals, detectives, lawyers, and psychologists. Having carried out a set of measures, specialists compile a report for the business owner where they identify weaknesses and recommendations for their correction. Thus, having spent a relatively small budget and finding problems, the owner will be able to protect themselves and property in the future from loss.
Of course, there are other methods of combating raiding, and the appropriateness of a method depends on the situation, financial capabilities or other factors. However, the main steps outlined above, taken together, are a fairly effective mechanism for protecting a business or property.
And finally, the following should be noted. Raider capture of the head wait for someone to finance – an opponent, a competitor, a political opponent, etc. He has no guarantee of success, but he has a strategy and a certain budget. Preparation for a raider attack takes a long time, and the attack itself is designed to achieve the result in a much shorter period. Therefore, if as a result of a raider attack events do not develop as planned by the raiders, they have to make adjustments – to attract more people (fighters), increase their stay near the company / land, attract more law enforcement officers / their leadership, spend more money necessary decisions or documents and more. All this leads to the expenditure of a larger budget and effort. And if as a result the active phase of the raider attack is delayed, the enemy begins to deplete financially and morally. As a result, it retreats and the conflict drags into a chronic process (goes to court, to the media, etc.) or the adversary loses interest in the object of capture and the conflict ceases altogether.
Andriy Schwab, lawyer, partner of Revealing Information Law Firm
Chernivtsi, Independence Avenue, bldg. 68-A, room 1
tel .: +38 068 8365330, e-mail: firstname.lastname@example.org
Kyiv, street Degtyarivska, 25-A 04119, tel .: +38 (095) 868-35-90, e-mail: email@example.com