Following the scandal involving the exposure of bribe-takers among employees of the Bureau of Economic Security (BES), proposals are being made to conduct an audit of criminal proceedings investigated by the BES, including for potential pressure on business. However, as lawyer Oleh Shram told UNN in an exclusive comment, Ukrainian legislation does not provide for such a mechanism regarding individual criminal cases. Instead, there are other tools for checking the legality of investigations that can allow for the identification of groundless proceedings and procedural violations, UNN writes.
"The current Criminal Procedure Code and relevant regulatory provisions on the prosecutor's office do not provide for such a concept as an audit of criminal proceedings. There is a possible option for prosecutors to check the status of pre-trial investigations in criminal proceedings, check legality, compliance with legality issues in criminal proceedings, and so on, but an audit is something else,"
According to the lawyer, the law indeed provides for an audit of the activities of the BES as an institution; however, such a mechanism does not apply to the analysis of specific criminal proceedings and cannot involve interference in the procedural decisions of investigators or prosecutors.
What can be checked in practice
Shram explains that procedural supervisors in criminal proceedings and heads of pre-trial investigation bodies can conduct a review of certain categories of cases.
"Heads of detective units and the prosecutor can check all criminal proceedings or a certain category, analyze them, and make appropriate procedural decisions. This is the only option possible on this issue,"
At the same time, according to the lawyer, only officials defined by law—heads of pre-trial investigation bodies, heads of detective units, prosecutors, and heads of the prosecutor's office—can assess the legality of investigators' actions.
In the lawyer's opinion, statements by experts or deputies about the need for an audit of criminal proceedings investigated by the BES most likely refer specifically to a review of the legality of criminal cases.
At the same time, the expert reminded that, according to legislation, prosecutors already carry out procedural supervision over every criminal proceeding. It is they who approve motions to investigating judges, check the validity of investigative actions, and have the right to cancel illegal decisions made by detectives.
Similar mechanisms already exist in Ukraine
The lawyer recalled that the prosecutor's office has already applied similar approaches to cases involving business. In particular, within the framework of the "Stop Pressure" initiative launched by the Office of the Prosecutor General, law enforcement officers considered complaints from entrepreneurs and checked individual criminal proceedings for legality.
In addition, the OPG previously reported on the review of tens of thousands of criminal proceedings regarding business.
"They stated that they checked about 26-29 thousand criminal proceedings related to business, and about 9 thousand proceedings that were groundless were closed,"
That is why, in his opinion, a review of BES cases is quite realistic, but will require time.
What violations can be detected
Speaking about the potential results of such a review, Shram highlighted several of the most common problems that may indicate violations during the pre-trial investigation.
First of all, this refers to going beyond the scope of the subject of the criminal proceeding.
"A case is opened based on one fact, but they investigate everything possible. This is going beyond the scope of the subject of the pre-trial investigation,"
Another common problem is a situation where the investigation continues even in the absence of sufficient data regarding the event of a crime or its elements.
According to the lawyer, sometimes law enforcement officers conduct searches, property seizures, document confiscations, and other investigative actions without establishing the basic fact—whether a criminal offense existed at all and whether a specific business entity is related to it.
Special attention, in Oleh Shram's opinion, should be paid to the legality of applying measures to ensure criminal proceedings. This refers to property seizures, obtaining access to bank secrets, confiscation of documents, ordering audits, and other tools that can significantly affect the operation of enterprises.
Recall
According to Prosecutor General Ruslan Kravchenko, in two separate criminal proceedings, a senior detective of the BES territorial administration in the Kyiv region and an analyst of the Bureau's central office were exposed for using their official positions to obtain improper benefits.
According to the investigation, one demanded 15 thousand dollars from a man who had previously appeared in a case regarding the manufacture and sale of counterfeit money, in exchange for not bringing him to criminal responsibility again. The other promised a representative of an enterprise to facilitate the issuance of a fuel storage license through his connections in the tax service for 2 thousand dollars.
"A system that is supposed to protect the state's economy cannot be a place for those who try to use their position for personal enrichment,"
People's deputies interviewed by UNN stated the need for an audit of criminal proceedings investigated by the BES for potential contract-based nature. They also point to the need for a reboot and cleansing of the law enforcement agency.
Addendum
A revealing case for checking the legality of criminal proceedings investigated by the Bureau of Economic Security could be a series of criminal proceedings against air carriers. As UNN reported, the BES is investigating a number of cases regarding at least five Ukrainian airlines, including UIA, "Constanta Airline", "Urga", "H3OPERATIONS", and "Skyline". These air carriers lease aircraft abroad from non-resident companies of Ukraine. The Bureau is convinced that the airlines should pay royalties in Ukraine, i.e., a fee charged for the use of intellectual property. At the same time, the fact that transport is not intellectual property is completely ignored, and Conventions on the avoidance of double taxation are in force between Ukraine and a number of countries. According to these agreements, Ukrainian companies pay taxes specifically for leasing and in those countries where the leasing companies are residents.
It is on this legal construct, unsupported by legislation, that criminal proceedings for tax evasion are based. However, the problem is that such a position contradicts both international practice and court decisions that have already been established in Ukraine.
Ukrainian courts have already repeatedly considered similar disputes regarding the rental and leasing of vehicles from non-residents and have sided with business, indicating that vehicle leasing is not a royalty.
This position is shared by specialized lawyers, tax experts, and specialists in the field of international taxation interviewed by UNN. They emphasize that international conventions on the avoidance of double taxation take precedence over internal interpretations of tax authorities, and lease payments for transport cannot be equated to royalties.
That is why criminal proceedings against airlines increasingly resemble not a fight against crimes in the economic sphere, but an attempt to create an artificial tax dispute through criminal prosecution mechanisms.