KM Partners law firm within the frames of its state activity begins rapid development of the new project “NO to 212 of the Criminal Code as a way of business pressure”.
KM Partners law firm within the frames of its state activity begins rapid development of the new project “NO to 212 of the Criminal Code as a way of business pressure“. The project is aimed at improvement, if to say precisely, at retrieval of economic and personal liberties, which have lately been derogated by the state authorities. Considering the respectful experience of protection of the clients’ rights, the specialists of KM Partners detected the stable tendencies of usage of the mechanism of initiating the criminal cases under Article 212 of the Criminal Code of Ukraine (hereinafter referred to as the “Criminal Code”) as a mechanism of business pressure with the aim inter alia of coercion of the taxes payment, charging sufficiency of which provokes serious questions. In the course of investigating the problem, the following tendencies have been revealed:
- court practice of Supreme Court of Ukraine and Superior Specialized Civil and Criminal Court of Ukraine proceeding from the claims on recognition of unlawfulness of opening the criminal case on the basis of Article 212 of the Criminal Code is differentiated. Recently there is a tendency in court practice evidencing not in favor of the taxpayers. Yet, Article 212 of the Criminal Code in the part with the description of the subject of crime has not been changed;
- the occurring court practice can be considered as such that the audit act itself is a sufficient ground for criminal case initiative;
- Article 212 itself is not clear and does not consider existence of the institute of tax liabilities settlement;
- amendments to Article 212 of the Criminal Code on the change of penalties do not solve the main problem – unreasonable opening of the criminal case on such category of cases;
- Russia had respective experience and decisive approach has been accepted that criminal case shall not be opened on the basis of audit act.
- Mentioned problematics occurs when criminal cases in view of tax disputes are opened on the basis of Article 191 of the Criminal Code “Appropriation, embezzlement of property or seizure by means of the official position abuse” or Article 367 of the Criminal Code “Negligence”.
That is why KM Partners is planning to begin active discussion in press as well as involving public institutions, issues connected with this problematics, and elaborate and offer possible mechanisms of solving this problem.