Date of publication: 1 March 2019
Denys Nienov, Attorney at Law
In February 2019, the Verkhovna Rada introduced a draft Law No. 10024 On Private Detective (Investigative) Activities.
This draft Law represents another attempt to regulate private detectives’ activities in Ukraine. A similar draft Law (No. 3726) was rejected in December 2018 by virtue of the President’s veto imposed in connection with its inconformity to a number of legislative acts, in particular, the provisions of the Criminal Procedure Code. What will be the fate and fortune of the new draft Law No. 10024 and private investigation activities in Ukraine?
The necessity of passing the law on private detective activities is supported by international practices. In major part of foreign countries, the activities of private detectives are thoroughly regulated at the legislative level. The scope of the detectives’ services is much wider, and the detectives enjoy much more rights compared to those stipulated in the draft Law submitted by Ukrainian People’s Deputies.
Foreign private detectives are usually engaged into cases involving corporate theft and fraud, financial fraud schemes, cybercrime, and copyright infringement.
Cooperation with private detectives is advantageous as being aimed at securing the interests of the clients, in contrast to the services performed by law enforcement agencies, whose tasks may be at odds with the interests of a particular person. In addition, private detectives must follow the confidentiality requirements regarding the information received from the client, which makes it possible to secure safety of the commercial secret or person’s personal information and protect it from distribution contrary to the interests of the customer.
There is no doubt that the rights, responsibilities and liability of private detectives should be thoroughly regulated by legislation, and their activities must be taken under proper control to protect their clients from unfair or unlawful actions on the part of the detectives.
The explanatory note to the draft Law No. 10024 states the following goals it pursues: legalization of private detective activities, “unshadowing them”, and the establishment of state control over this sphere, the empowerment of individuals and legal entities to be able to protect their legitimate rights and interests, including the provision of additional evidence-collecting tools to the defence.
However, the content of the draft Law, especially in the part of the scope of rights exercised by detective agencies and private detectives, calls into question the possibility of reaching these goals. According to the draft Law, the rights of private detectives are actually reduced to conducting search actions, as well as obtaining and storing information. Such powers do not differ much from the rights of any Ukrainian citizen.
So, let’s determine what rights private detectives, nevertheless, have:
– to carry out directed surveillance in the open areas, in public places and in transport according to the decision of authorized persons subject to the procedure stipulated by the Criminal Procedure Code of Ukraine;
– to address requests to state and local government bodies, enterprises, institutions, organizations, public associations, as well as individual persons;
– to conduct visual examination of premises with unrestricted access (subject to the consent of the owner or an authorized person);
– to review and study materials, items, documents subject to consent of their owners or lawful users;
– to receive written conclusions and oral consultations of specialists and experts regarding the issues requiring specific expertise on a contractual basis;
– conduct oral questioning of individual persons.
As for the international experience, in the United States, for example, private detectives are ranked into categories: “A” or “C”. Those, to whom category “A” was assigned, only have the right to gather information. Category “C” detectives have a wider range of opportunities: to conduct investigations, carry weapons and provide security services. Thus, if we compare the model proposed in the draft Law with the American one, the Ukrainian model is shaped in a reduced form.
The provisions of the draft Law related to the powers of the National Police on the issue and cancelation of the certificates providing the right to conduct private detective (search) activities may also be considered debatable. Such dependence of private detectives from the National Police may result in their being biased and the inability to duly and properly perform the detective’s services. Namely: making the rights of the prosecution and the defense parties equal were declared as one of the objectives of the draft Law.
Despite the fact that one of the goals of the draft Law is aimed at expanding the possibilities for the defence to collect evidence, in fact, a private detective in this respect has even less rights than an attorney: the detective has no right to hold a written questioning of individual persons, there is no responsibility of the relevant authorities and organizations to respond to private detective’s enquiries, there is no deadline for the provisions of the response to such an enquiry, as well as there is no responsibility for ignoring it.
In view of a rather narrow scope of the rights of a private detective, there is a pending question about the possibility of their effective application by the parties to the process during court protection of the rights of individual persons and legal entities.
In addition, currently in Ukraine there are several thousands of private detectives and private detective agencies. The similar detective-like services are also provided by security agencies and certain law firms. These are most often related to verification of client-related information, inspection of potential business partners and job candidates, covert surveillance over spouses in connection with marital unfaithfulness.
However, from my point of view, the draft Law does not contain the necessary mechanisms, and most importantly, stipulates for no rights and opportunities for the existing private detectives and private detective agencies that would encourage them to obtain certificates granting them the right to practice private detective activities.
It is likely that if the draft Law is passed in its original form, many private detective services market operators will not be willing to reshape their work in accordance with the new law, which will result in this area remaining “in the shadows”.
Undoubtedly, this draft Law is an important step towards expanding the protection of the legitimate rights and interests of individual persons and legal entities, but it requires further revision and introduction of amendments (especially in terms of the extension of the rights of subjects of private detective activities), which will bring benefits to everyone: the representatives of the detectives’ services market and their clients – individual persons and legal entities.