Forensic Economic Examination in Criminal Cases Against Business

In cases investigated by the Bureau of Economic Security (BEB) on materials supplied by the State Tax Service (DPS), the prosecution almost always rests on a single figure — the amount of unpaid taxes or the losses said to have been caused. Who calculated that figure, and from which documents, frequently decides the fate of the entire proceeding. This is precisely where forensic economic examination becomes the tool with which the defence can test the investigation’s calculations and set against them its own, document-backed result.

What an economic examination establishes in a criminal case

The role of forensic economic examination in criminal proceedings is narrow but decisive: it confirms or refutes the sums on which the charge is built. The expert works with documents and figures, not with the behaviour or motives of people.

Let me draw the boundary of competence at once, because it is the one most often crossed. The expert does not establish:

• guilt, intent, or a self-interested motive — these are matters of proof for the investigation and the court;
• the legal classification of the act and its elements;
• the specific culpable person.

The opinion is worded in documentary terms: “according to the primary documents provided, the amount of X did not reach the budget” or “funds in the amount of Y left the company without proper grounds.” This narrowness is not a weakness but a source of resilience: the moment an economic expert starts reasoning about “intentions” or “misappropriation” in the legal sense, the opinion is easily discredited as stepping beyond the limits of special knowledge.

Tax evasion (Article 212 of the Criminal Code)

In cases under Article 212 of the Criminal Code of Ukraine (CC), everything turns on the actual amount of funds that failed to reach the budget. Non-payment on its own is not yet a crime; liability arises only once the thresholds are reached (significant, large, and especially large amounts), expressed in tax-free minimum incomes of citizens (NMDG). The difference between “just under the threshold” and “just over it” is therefore the difference between a tax dispute and a criminal prosecution — and the precision of the calculation here is decisive.

Misappropriation and embezzlement (Article 191 of the Criminal Code)

Under Article 191 CC the expert answers two questions: is the fact that funds or property left the company without grounds documented — and in what amount. The foundation of proof here is a properly conducted inventory (inventaryzatsiya) and the primary documents, not a retelling of an audit report. Distinguishing misappropriation, embezzlement, and taking property by abuse of office is the lawyer’s task; the expert only shows what the documents actually reveal.

How an expert is engaged: three procedural routes

Many still picture examination as something “only the investigator orders.” That has long ceased to be true. The current Criminal Procedure Code of Ukraine (KPK) gives the parties equal opportunity to engage an expert, and the defence need not wait on the prosecution’s goodwill.

Route	Who initiates	Governing KPK provision
The prosecution engages an expert	investigator, detective, prosecutor	Arts. 242–243
The defence engages an expert on its own	defence counsel, suspect	Art. 243
The investigating judge engages one at the defence’s request	on a party’s motion	Art. 244

The key provision on the grounds for examination is Article 242 KPK: an examination is carried out on a party’s request or by assignment of the investigating judge or court, and in certain categories of case it is mandatory. The procedure for engaging an expert is set by Article 243 KPK, which expressly gives the defence the right to engage experts on its own, on a contractual basis. If access is needed to objects or documents held by the other side, the defence files a motion with the investigating judge (Article 244 KPK), who then decides on engaging the expert. During trial, the question of ordering an examination is decided by the court.

Defence rights that are often forgotten

Equality of arms in gathering evidence is not a declaration but a working tool. In practice the defence has several rights worth using in good time.

• Proposing questions to the expert. The opinion depends directly on how the questions are framed. An incorrect or “legal” question yields an unusable answer, so the questions are best agreed with an economist involved.
• Reviewing the procedural decision on the examination. When the examination is ordered by an investigating judge or the court, the party must see exactly which questions are posed and on which materials the study will rest.
• Challenging the expert. The KPK provides for the institution of recusal: if there are circumstances casting doubt on the expert’s impartiality or competence (including dependence on one of the parties), that is grounds to raise the challenge.
• Engaging one’s own expert. This is perhaps the strongest defence right — more on it below.

A practical rule: all these rights work only when exercised in good time, with objections recorded in writing. Silent disagreement in court counts for nothing.

An alternative opinion and a review as counter-evidence

When the investigation’s calculation is doubtful, the defence has two tools of different force. They are constantly confused, yet they are fundamentally different things.

An alternative opinion is a full expert opinion by an expert engaged by the defence on a contractual basis. It is an independent source of evidence in the case: the court weighs it on a par with the opinion supplied by the prosecution. If an independent expert, relying on the very same primary documents, arrives at a different sum, the case now holds two opinions — and the court is obliged to give reasons for choosing one over the other.

A review is a professional assessment of an existing opinion: the reviewer exposes its methodological and computational defects. Here one must be realistic: a review does not have the independent force of an opinion and does not automatically “cancel” the challenged one. It works as the justification for a motion to order an additional or repeat examination. Its effect depends directly on specificity — each remark must be tied to a page of the opinion, a concrete document, and the methodology or rule breached.

When choosing the tool, be guided by the nature of the defect:

1. minor obscurities the expert can explain — sometimes questioning the expert is enough;
2. incompleteness of the study or new questions — grounds for an additional examination;
3. systemic methodological errors, disregard of the primary documents, substitution of the subject matter — grounds for a repeat examination, and this is where a review is most useful.

A forensic expert is required to work by certified methodologies in force on the date of the study — these can be checked against the Register of methodologies maintained by the Ministry of Justice. The procedure for ordering and conducting examinations is set by the Instruction approved by Ministry of Justice Order No. 53/5, and the general framework by the Law of Ukraine “On Forensic Examination.”

Common investigative errors in economic calculations

Over years of expert work the same flaws recur. Knowing them helps both sides, because an unproven figure harms the defence and the state alike.

• Mixing gross and net amounts. The prosecution often takes gross turnover or the total value of transactions where the offence depends on the net, document-backed result — the tax actually unpaid or the sum that genuinely left the company. The gross figure is always larger and more striking, yet legally wrong.
• Double counting. The same transaction is counted twice — for instance, both from the bank statement and from the accompanying invoice — and the sum is artificially inflated. In a sound calculation each transaction should “close” only once.
• Folding penalties and fines into the “body” of the tax. Penalties and fines are liability for delay, not tax. Adding them to the unpaid tax can artificially push a case over the Article 212 threshold and change the classification.
• Mechanically carrying over the bottom line of a DPS report. A documentary audit report is the position of the controlling body, not a sum finally established by a court. Part of the assessments is later reduced or cancelled on appeal; the closing line must not be copied into the expert opinion.
• A single NMDG value for all periods. For classifying the offence, the tax-free minimum is taken at the level of the tax social relief of the relevant year, which changes annually. An episode “stretched” across several years must be counted separately for each period.
• Relying on a formal inventory. In Article 191 cases a shortage is often recorded “by eye,” without inventory descriptions or comparison statements. Without a clean starting point, any loss figure will be contestable.

These errors share one feature: the figure is taken from “above” rather than built up from below, from the primary document. Breaking the sum into its parts and returning to the primary records is what most often changes the picture of the case.

Interaction with the BEB, the DPS, and the Financial Monitoring Service

Understanding where a case comes from is useful for the defence. Pre-trial investigation of economic — above all tax and financial — criminal offences is conducted by BEB detectives; jurisdiction is set by the Criminal Procedure Code. Materials for such proceedings frequently arrive from the DPS following documentary audits, and in money-laundering cases from the State Financial Monitoring Service.

The main thing to grasp: none of these bodies has the last word on the amount until it has been verified against the documents within an examination. A DPS report is a trigger and a starting point, not a proven figure. Professional economic assessment is therefore needed as early as possible: the sooner a verified calculation appears in the file, the less room there is for arbitrary sums that later prove hard to unwind in court.

Practical steps for the parties

• For business owners and directors: keep your primary documents and do not equate an audit report with a verdict; at the first signs of a shortage, conduct a proper inventory.
• For lawyers: check what the charged sum stands on — the primary records or merely the report; use the right to engage your own expert, rather than only reacting to the investigation’s opinion.
• For investigators and detectives: frame questions about the fact and the amount, not the classification; supply a complete, not selective, package of documents — a selective one leaves the opinion vulnerable.

An independent, document-backed calculation is the best protection for taxpayer and state alike: each should answer for exactly the sum that is genuinely proven. If you are a lawyer, a business owner, or someone charged with an economic offence and need the investigation’s calculations or your own expert opinion tested, get in touch for a consultation or a forensic economic examination. Sorting out the figures early is almost always cheaper than repairing shaky conclusions once you are already in court.