17.04.2019

“CANCEL AND… CANCEL AGAIN” OR “YOU CAN NEVER HAVE TOO MANY FAIR DECISIONS”

“CANCEL AND… CANCEL AGAIN” OR “YOU CAN NEVER HAVE TOO MANY FAIR DECISIONS”

In this business, the lawyers of Femida LegalAssociation adopted the protection of client’s interests in criminal proceedings in a rather widespread situation in the Ukrainian business environment; The client has received an act from the MFS authority in which he is registered on the results of an unscheduled non-visiting documentary check on relationships with certain counterparties. It is supposedly a habitual situation, but the client claims that he did not receive any requests for documents from the supervisory authority.

After reading the Verification Act and sending a number of advocate queries to the tax authority and the court, it became clear that the inspection was conducted on the basis of a decision of the investigating judge of the Obolonsky district court of Kyiv, which “was given to prosecutors of the Kiev local prosecutor’s office №5 Batrin Yu. M. and Yakovchuk M. Yu. and the investigator of inquisitional group of the Inquisitional management of financial investigations of STI in the Obolonsky district of the General Department of SFS in Kyiv, in criminal proceedings No. 32017100050000026, namely: senior investigator of the Second Department of Investigation of Criminal Proceedings of the Surgis STI in the Obolonsky District of the SFS in Kyiv, Lyudmyla Vitaliivna Saulak, senior investigator of the First Department of Investigation of Criminal Proceedings of the State Social Insurance Fund of the STI in the Obolonsky District of the State Social Insurance Institution in Kyiv, Ruslan Vasiliev, the Engine of the permission to appoint a documentary unscheduled inspection of a number of enterprises. ”

The said decision was made in the deed No. 756/10077/17 on August 10, 2017. In the client’s intermissions, the Femida Legal Association’s lawyers filed an appeal against the decision.

On February 27, 2019, the Kiev Appeal Court in the panel of judges: Kepkal L.I. (chairman), Vasilieva M.A. and Chornyi O.M. was made a decision, which was partially satisfied with “the appeals of the lawyer Gaidak O.V. in the interests of PE «Scientific and Technical Enterprise “Ukrainian Center for Real Estate “», lawyer Bilitsky R. B. in the interests of LLC ARE “SPETSSERVICE”, lawyer Demyanenko M.V. in the interests of LLC « FIRMA CONTACT».

The decision of the investigating judge of the Obolonsky district court in Kyiv dated 10.08.2017, which satisfied the application of the prosecutor of the Kyiv local prosecutor’s office №5 Batrin Yu.M. about the appointment of documentary unscheduled inspections in criminal proceedings No. 32016100050000055 and the documentary unscheduled inspections of a number of enterprises were appointed, among which a documentary unscheduled inspection by LLC “ FIRMA CONTACT” on compliance with tax and other legislation requirements, completeness of accrual and timely payment of taxes in the relations with LLC “Elektroprom Plast “, LLC “Inprom Plus “, LLC” Feniks Torg “, LLC” Lux Consortium “for the period from 01.01.2015 to 30.06.2017; was appointed the documentary unscheduled inspection of the PE «Scientific and Technical Enterprise “Ukrainian Center for Real Estate”» on compliance with the requirements of tax and other legislation, completeness of accrual and timely payment of taxes in the relations with LLC “Electroprom Plast”, LLC “Tera Garant” for the period from 01.01. 2015 at 30/06/2017; was appointed the documentary unscheduled inspection of LLC «ARE” SPETSSERVIS “» on compliance with tax and other legislation requirements, completeness of accrual and timely payment of taxes in relations with LLC” Lux Consorins “for the period from 01.01.2015 to 30.06.2017 – was canceled.

A new decision was issued, which returned the petition of the prosecutor of the Kyiv local prosecutor’s office №5 Batrin Yu.M. on the appointment of documentary unscheduled inspections in the criminal proceedings №32016100050000055 of a number of enterprises, among the LLC “FIRMA CONTACT” on compliance with tax and other legislation, the completeness of accrual and timely payment of taxes in relations with LLC «Elektroprom Plast», LLC «Inprom Plus», LLC “Feniks Torg”, LLC “Lux Consorins” for the period from 01.01.2015 to 30.06.2017; PE «Scientific and Technical Enterprise “Ukrainian Center for Real Estate”» on compliance with tax and other legislation requirements, completeness of accrual and timely payment of taxes in relations with LLC” Electroprom Plast “, LLC” Terah Garant “for the period from 01.01.2015 to June 30, 2017; LLC «ARE “SPETSSERVIS”» on compliance with the requirements of tax and other legislation, the completeness of accrual and timely payment of taxes in relations with LLC “Lux Consorins” for the period from 01.01.2015 to 30.06.2017.

The decision can not be appealed in cassation order»

And as though thereon it was already possible to forget about the indicated history, but on April 10, 2019, the same Kiev Appeal Court, though in the composition of another board of judges Svintsitskaya O.P. (chairman), Ignatyuk O.V., and O.Rudnichenko, considered the appeal against the said decision of the representative of another society and took the following decision: “The appeal of the director of the LLC «SPCF “Donbass-Termo”» OSOBA_5 partially satisfy” .
The decision of the investigating judge of the Obolonsky district court in Kyiv dated August 10, 2017, which satisfied the appeal of the prosecutor of the Kyiv local prosecutor’s office No. 5 Batrin Yu.M. and granted permission to appoint a documentary unscheduled inspection of a number of enterprises, among which a documentary unscheduled inspection by LLC «SPCF “Donbas-Termo”» on compliance with tax and other legislation, completeness of accrual and timely payment of taxes in the relations with LLC “Astra Style Group ” , LLC “Sparma”, LLC “Lux Consorins”, LLC “Elektroprom Plast” for the period from 01.01.2015 to 30.06.2017, the execution of which was entrusted to the General Department of SFS in Kyiv, canceled.

To make a new decision refusing to satisfy the request of the prosecutor of Kyiv local prosecutor’s office № 5 Batrin Yu.M. on granting permission for the appointment of a documentary unscheduled inspection of a number of enterprises, among which a documentary non-scheduled inspection was commissioned by LLC «SPCF “Donbass-Termo”»

The decision can not be appealed. ”
I understand the justice of the decision of the court of appellate instance, but I can assume that at the time of lodging an appeal, the representative of the complainant company did not know that the said decision had already been revoked. Perhaps this was not known by the prosecutor, who did not come to the appeal panels for consideration by the first board of judges. But how was the board of judges not seeing in the materials of the deed the decision of their colleagues, which has already been abolished the contested decision of the court of first instance?
So we have a precedent …

1. The decision of the court of the first panel

http://reyestr.court.gov.ua/Review/68298543

2. The decision of the Kiev Appeal Court of February 27, 2019

http://reyestr.court.gov.ua/Review/80258642

3. The decision of the Kiev Appeal Court of April 10, 2019

http://reyestr.court.gov.ua/Review/81072276

 

Alexander Gaidak
lawyer, senior partner
Femida Legal Association

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