When and why does the defence conduct forensic examinations in cases of embezzlement in defence procurement?

Forensic examinations are one of the most crucial tools for substantiating a position, both for the prosecution and the defence, in any legal case, especially in complex and multifaceted cases such as those involving embezzlement in procurement for defence and infrastructure needs.

Over the past two years, there has been a significant increase in the number of registered criminal proceedings in the field of public procurement.

According to statistical data from the Office of the Prosecutor General, while law enforcement agencies initiated pre-trial investigations into 270–330 criminal offences in this area annually up to 2021, this number dropped to 263 in 2022, rose to 727 similar offences in 2023, and reached 997 cases in the first 10 months of 2024.

Public procurement for defence and infrastructure needs constitutes a significant share of overall procurement. The proportion of criminal offences recorded by law enforcement in this area during 2023–2024 is consistent with the trends observed in previous years for this category.

This trend, among other things, reflects the heightened scrutiny of all types of public defence procurement by law enforcement agencies.

What Are the Key Indicators for Initiating a Pre-Trial Investigation from the Perspective of Law Enforcement?

Based on the results of procurement for defence and infrastructure needs, representatives of both the supplier and the buyer may become subjects of criminal prosecution if the following indicators, according to law enforcement authorities, are present:

• Provision of goods or services at inflated prices; non-compliance of the supplied goods or services with the requirements of tender documentation and the contract;
• Failure of the supplier to fulfil obligations under the concluded contract properly;
• Violation of procurement procedures by either the buyer or the supplier;
• Alteration of contract terms after it has been concluded.

At the same time, the most common legal provisions used to classify criminal offences in cases of procurement for defence and infrastructure needs are:

• Article 191 of the Criminal Code of Ukraine – regarding the embezzlement or misappropriation of budget funds by officials of both the supplier and the buyer;
• Articles 367 and 425 (for military officials) of the Criminal Code of Ukraine – regarding negligence by officials in performing their duties, leading to unjustified expenditures of budget funds;
• Article 366 of the Criminal Code of Ukraine – regarding the inclusion of false information by officials in tender documents or documents related to the execution of a concluded contract;
• Articles 364 and 426-1 of the Criminal Code of Ukraine – regarding decisions made by officials exceeding their authority, resulting in unjustified expenditures of budget funds;
• Article 358 of the Criminal Code of Ukraine – regarding the creation and use of forged documents, including for participation in procurement and for fulfilling the conditions of a concluded contract;
• Article 190 of the Criminal Code of Ukraine – regarding the unjustified appropriation of funds by suppliers through fraudulent actions.

At the same time, during the pre-trial investigation, the defence must be prepared to refute the stated circumstances using legally provided tools, the most effective of which are forensic examinations.

According to Article 101 of the Criminal Procedure Code of Ukraine, an expert opinion is a detailed description of the studies conducted by the expert, the conclusions drawn from those studies, and substantiated answers to the questions posed by the party engaging the expert or by the investigating judge or court that ordered the examination.

In the context of criminal proceedings, each party has the right to present an expert opinion to the court, based on the expert's scientific, technical, or other specialised knowledge.

When Can the Defence Conduct Forensic Examinations in Criminal Proceedings Related to Procurement for Defence and Infrastructure Needs?

The defence can conduct forensic examinations in criminal proceedings of this category both during the pre-trial investigation and during the court trial stage, with the purposes of such examinations often overlapping.

At the pre-trial investigation stage, it is not necessary to wait for a formal notice of suspicion to initiate and conduct the relevant forensic examinations.

Law enforcement agencies gather evidence prior to issuing a notice of suspicion, including by sending requests under Article 93 of the Criminal Procedure Code of Ukraine and executing investigative judges' orders for temporary access to items and documents. From these documents, potential participants in such criminal proceedings can learn about the key circumstances of the alleged offence and take measures to refute the existence of criminal elements in the investigated case even before a notice of suspicion is issued.

Such actions must be undertaken at this stage, including to refute the following circumstances:

1. inflated prices for supplied goods or services;
2. improper fulfilment of contract terms;
3. non-compliance of supplied goods or services with the tender documentation and the concluded contract;
4. the amount of damage caused;
5. poor quality of supplied goods;
6. discrepancy between the cost and volume of completed work.

At the same time, the direct objectives of conducting forensic examinations by the defence may include, in particular:

• obtaining additional evidence to refute the charges brought or to mitigate the responsibility of the accused;
• challenging the conclusions of examinations conducted by the prosecution; obtaining new information that may influence the court's decision;
• proving the legality of the supplier's business activities.

In a broader sense, conducting forensic and comprehensive forensic examinations supports the defence strategy by contributing to:

1. Ensuring the establishment of objective truth: Forensic examinations provide an independent assessment of evidence, which is crucial for establishing the truth in a case.
2. Refuting charges: Expert conclusions can disprove the presence of a criminal offence or reduce the degree of culpability of the accused.
3. Substantiating the defence’s position: Expert conclusions serve as a significant argument for the court and can influence its decision.
4. Protecting rights and legitimate interests: The defence has the right to a comprehensive and impartial investigation, and forensic examinations are one of the ways to ensure this right.

In such circumstances, the successful implementation of the client’s defence strategy is practically impossible without the defence obtaining expert opinions on the key aspects of the charges brought or the suspicion raised.

What Types of Forensic Examinations Can the Defence Use in Criminal Proceedings Related to Defence and Infrastructure Procurement?

Depending on the nature of the crime under investigation and the incriminating circumstances of its commission, the following types of forensic examinations are almost essential for the defence to ensure a successful strategy:

• Forensic Commodity Examination: to refute allegations of inflated costs of supplied goods, confirm their compliance with the contract terms and specifications, and more.
• Forensic Economic Examination: to verify the supplier’s business operations, confirm the cost of goods and services based on production cost calculations, refute allegations of financial damage, or objectively establish the amount of such damage.
• Forensic Handwriting Examination: to confirm or refute the authenticity of signatures on official documents, and to challenge indications of forged signatures.
• Technical Examination of Documents: to verify or refute the authenticity of seals, and identify signs of document forgery, including signatures and stamps.
• Forensic Examination of Accounting, Taxation, and Reporting Documents, and Forensic Examination of Documents on the Economic Activities of Enterprises and Organisations: to analyse the financial and business activities of companies involved in procurement, refute signs of fraud and other financial violations.
• Forensic Construction and Technical Examination: to challenge allegations of discrepancies in the volume and cost of completed construction or design works, or the quality of their execution in relation to the requirements of tender documentation.

In certain cases, it is advisable to appoint and conduct comprehensive forensic examinations to allow simultaneous analysis by experts from various fields. For example, a combined commodity examination and materials, substances, and products examination may be conducted when a commodity examination requires an analysis of the chemical composition of materials included in the product.

At the same time, it is important to understand that appointing and conducting a forensic examination is a complex and responsible process that requires professional knowledge and expertise. Therefore, selecting an expert should be approached with great care, taking into account the specialisation and credibility of the expert institution. Experienced experts ensure high-quality examinations and the reliability of the results obtained.

Thus, forensic examinations are an indispensable tool for protecting rights and legitimate interests in cases of embezzlement in defence procurement. Professionally conducted examinations provide objective data, refute accusations, and prove innocence.