Analytical reports by the Bureau of Economic Security may constitute grounds for initiating a pre-trial investigation, but on their own they are not evidence that a crime was committed. At the same time, the issue is not so much the existence of such a mechanism as the fact that, in practice, it is used to put pressure on businesses. Lawyer Oleh Shram expressed this opinion in an exclusive comment to UNN.
An analytical report is not evidence
The lawyer emphasizes that the very idea behind creating the analytical unit of the BES was that its employees would analyze information and identify possible signs of economic crimes. However, according to Shram, it is fundamentally important to distinguish between grounds for initiating an investigation and proof of guilt.
An analytical product in itself is not and cannot be evidence of anything. In other words, it is merely grounds for initiating criminal proceedings
He added that one of the BES's functions is to independently identify criminal offenses, and this is precisely why analysts have been granted access to the relevant state databases.
At the same time, in the lawyer's view, the greatest risks arise not from the legislative model itself, but from abuses in its practical application.
The question is how it is used and how lawfully they do so. Of course, there are many questions when they write in a report what they need, or regarding how objective these reports are, and use them as grounds
The lawyer emphasized that his greatest concerns relate specifically to the good-faith use of these powers.
I have questions for the BES regarding how honestly, with integrity, conscientiously, and in accordance with the purpose and objectives originally embedded in the concept, they use the powers granted to them. Are there elements of abuse in this case—using this mechanism to unjustifiably initiate criminal proceedings, interfere with lawful business activity, or pursue some other objective
According to the lawyer, any legislative provision can be used both in accordance with its purpose and contrary to it.
Any provision of law can be drafted, but it can be used to achieve some unlawful objective or conceal some unlawful activity. Therefore, it is necessary to distinguish between the legality of the idea itself and the legality of how it is implemented
Citing his own experience, Shram notes that the BES criminal proceedings opened on the basis of analytical reports proved ineffective.
Analytical conclusions "copied from the same template"
An example of criminal prosecution based on analytical reports is a number of Ukrainian airlines. The BES is investigating cases involving at least five air carriers, including MAU, "Constanta Airline," "Urga," N3Operations, and "Skyline," over the alleged failure to pay an additional 15% tax on income earned by nonresidents under aircraft and helicopter leasing agreements to the Ukrainian budget. Investigators equate leasing payments with royalties and treat aircraft not as means of transport but as "equipment."
Law enforcement officers obtained the analytical conclusions after the previous team at the State Tax Service published an article in 2024 proposing that leasing operations involving transportation with nonresidents of Ukraine be taxed as royalties. The documents, which according to representatives of the aviation market resemble one another and appear to have been written "from the same template," formed the basis of criminal cases against air carriers.
However, according to the lawyers interviewed by UNN, during the investigation, investigators ignore the applicable international conventions on the avoidance of double taxation. Agreements with foreign states ratified by the Verkhovna Rada take precedence over national legislation and determine in which state and at what rate the relevant nonresident's income may be taxed. Therefore, the automatic assessment of an additional 15% tax in Ukraine without taking into account the provisions of a specific convention is at the very least debatable, experts emphasize.
It is worth noting that Ukrainian tax legislation regarding the taxation of leasing has not changed for decades. Moreover, according to the State Tax Service, the airlines underwent tax audits, and violations in the taxation of leasing were established based on only one of them. The remaining tax audits did not reveal any such violations.
As a result of one audit of companies in the aviation sector, leasing payments were reclassified as royalties. Only one audit
However, the absence of violations did not prevent the Economic Security Bureau from opening criminal cases against the airlines, believing that they had failed to pay 15% royalties over the past seven years. At the same time, the list of airlines facing claims from law enforcement agencies over leasing may expand at any moment, since approximately 40 air carriers use leasing. Thus, the entire civil aviation sector may come under attack.
As reported by UNN, representatives of the aviation sector publicly stated that they were facing pressure from the Economic Security Bureau because investigators interpret air transport leasing transactions as royalties, as well as because of criminal proceedings and attempts to reassess taxes for seven years. According to them, civil aviation has come under threat of destruction due to the actions of state regulatory authorities, which could ultimately finish off companies that survived the closure of the airspace and relocation abroad due to the full-scale war.
Formally, analytical reports prepared by the Economic Security Bureau may constitute a lawful basis for initiating a pre-trial investigation; however, they are not evidence that a crime was committed and cannot substitute for a full-fledged pre-trial investigation. At the same time, the practice of using them raises increasingly more questions when analytical conclusions identical in content become the basis for criminal prosecution of businesses, despite the absence of established tax practice, the results of State Tax Service audits, and the provisions of international conventions. Therefore, the key problem lies not in the very existence of the analytical mechanism, but in the risk of its use as an instrument for unjustified interference in the business activities of enterprises.