If desired, Article 209 can be applied to almost any case of economic offense
One of the most favorite articles of the Criminal Code of law enforcement officers is the legalization of property obtained by criminal means. If desired, it can be attached to almost any case where an entrepreneur is charged with an economic offense. Let’s try to figure out why this is an abuse.
A misdemeanor becomes a crime
Today, the disposition of Article 209 of the Criminal Code provides for the acquisition, possession, use, and disposal of property in respect of which factual circumstances indicate that it was obtained by criminal means. What are we talking about? In the list provided by the legislator: “carrying out a financial transaction, making a transaction with such property, or moving, changing the form (transformation) of such property, or taking actions aimed at concealing, disguising the origin of such property or ownership of it, the right to such property, the source its origin, location, if these acts were committed by a person who knew or should have known that such property was directly or indirectly, fully or partially obtained by criminal means.”
Such actions are punishable by imprisonment for a term of three to six years, with deprivation of the right to hold certain positions or engage in certain activities for up to two years and with confiscation of property. A more severe punishment is imposed for repetition and commission of a crime by a group of persons, an organized group or on a particularly large scale. Here the restriction of freedom reaches twelve years.
The convenience of the article lies in its obvious logic: if a subject has received illegal income somewhere, obviously, he must somehow legalize it.
In practice, this means that even a criminal offense or a minor crime in combination with legalization (serious crime) is already subject to stricter rules of the Criminal Code (the inquisitive reader can familiarize yourself with the classification of offenses depending on the severity of the punishment established in Article 12 of the Criminal Code) .
So, for example, according to Art. 45 of the Criminal Code, a person who has committed a criminal offense or a careless minor crime for the first time is exempt from criminal liability if, after committing the offense, he sincerely repented, contributed to the disclosure and compensated for the damage. Such active repentance when incriminating legalization is no longer possible. The same situation is with the reconciliation of the perpetrator with the victim (Article 46) and a change in the situation, when the committed act has lost its social danger or the person has ceased to be socially dangerous (Article 48). The statute of limitations differs significantly for different types of crimes when a person is released from liability (Article 49). Also, for a minor crime, a person can be released from punishment by the court if it is recognized that, taking into account impeccable behavior and a conscientious attitude to work, this person cannot be considered socially dangerous at the time the case is considered in court (Article 74). A person guilty of a serious crime does not have this opportunity.
In addition, in the case of an investigation of a serious or especially serious crime, the arsenal of procedural actions is significantly expanded. This applies, for example, to the seizure of property (Article 170 of the Criminal Procedure Code). Carrying out most of the most effective covert investigative (search) actions is possible only in criminal proceedings for serious or especially serious crimes (Article 246 of the Code of Criminal Procedure).
And perhaps the most important thing: the severity of the punishment facing a person is taken into account when choosing a preventive measure (Article 178 of the Code of Criminal Procedure).
That is, qualification under the article of legalization is an opportunity for additional measures of influence on the suspect. Because of the prospect of losing his freedom in this way, they are trying to make him more accommodating and “negotiable.”
But the application of the legalization article requires compliance with specific conditions related to the subject of laundering. If there is adequate protection, law enforcement officers often have difficulties with this.
No loss or damage
One of these cases turned out to be the high-profile case of the theft of UAH 2.2 billion from Naftogaz, to which legalization was naturally added. We are talking about an investigation into the seizure of natural gas by the Novoyavorovskaya and Novorozdolskaya CHPPs and their misuse (they were supposed to produce thermal energy for heating and supplying hot water to the population, but the gas was used to produce electrical energy, which was sold to the state enterprise Energorynok. Since thermal power plants is associated with People's Deputy Yaroslav Dubnevich, today the National Anti-Corruption Bureau of Ukraine and the Specialized Anti-Corruption Prosecutor's Office accuse him of organizing a crime under Article 191 (Appropriation, embezzlement of property or taking it by abuse of official position) of the Criminal Code.
It is interesting that the investigation materials today number more than 350 volumes, and the case itself is called one of the most complex in the history of anti-corruption authorities. At the same time, one important element of the crime is still missing in the investigation.
Thus, according to the accounting and financial statements of Naftogaz, this enterprise, based on the results of its work, did not suffer any losses from the implementation of agreements with thermal power plants. Moreover, during the period under investigation, Naftogaz declared billions in profits, and its managers received millions in annual bonuses for excellent work.
Article 191 of the Criminal Code, as a mandatory sign of the objective side of the crime, provides for the onset of socially dangerous consequences. And since the damage was not documented (it seems that the law enforcement officers themselves calculated it using their own methods without taking into account primary documents, financial and accounting statements of enterprises), then there is no objective side, the event of the crime.
It is also noteworthy that in October 2018, the then head of the Specialized Anti-Corruption Prosecutor's Office, Nazar Kholodnytsky, asserted that Yaroslav Dubnevich was not involved in gas fraud in the Lviv region. At the same time, this did not prevent him from being suspected of legalizing property. Although it is the presence of the elements of the primary crime (object, objective side, subject and subjective side) that is a necessary condition for qualifying actions under Art. 209 of the Criminal Code.
Without predicate
So, today legalization is considered to be certain actions with property, “in respect of which the actual circumstances indicate its receipt by criminal means.” That is, in order to inform a person about suspicion of laundering, it is necessary that there is already a suspicion (or there are all grounds to declare it) of another crime, during which, according to the prosecution, the property that was the subject of the offense was obtained.
Because it is at the moment of notification of suspicion to a person that his criminal prosecution begins (Article 3 of the Criminal Procedure Code), and the basis for criminal liability is the commission of an act containing elements of an offense (Article 2 of the Criminal Code). In other words, independent legal qualification under the article “legalization” cannot exist.
And if in criminal proceedings the legitimacy of the suspicion is called into question due to the absence of at least one of the elements, the accusation of laundering automatically becomes false.
In the gas business, which we took as an example, the situation is even more interesting. At the time of the events under investigation (2013 – 2017), there was a different, more “severe” disposition of Article 209 (changes were made by Law No. 361-IX, which entered into force on April 28, 2020). Evidence of the factual circumstances of obtaining property by criminal means was not enough then - there had to be a predicate! The legalization of income was preceded by “the completion of a financial transaction or transaction with funds or other property obtained as a result of the commission of a socially dangerous illegal act.” The difference in the editions of the criminal law is fundamental: previously it was not about suspicion, but about the fact of committing a crime. That is, at the time of announcement of suspicion under Art. 209 there had to be a court verdict of guilty that had entered into legal force for the primary crime (the legal aspect of this issue was outlined in sufficient detail by lawyer Semyon Khanin).
Since, according to the Criminal Code, any criminal legal consequences of an act are determined by the law on criminal liability in force at the time the act was committed, in a gas case, where a person was simultaneously informed of two suspicions under Art. 191 and 209, there was clearly an abuse of power on the part of the investigators. And the court still has to sort all this out.
Questionable effectiveness
Why do such obvious violations of criminal and criminal procedural law occur in Ukraine? Unfortunately, representatives of our law enforcement agencies often perceive entrepreneurs as an additional (and perhaps the main) source of income. The key instrument for this is the Criminal Code. And even its clearly incorrect interpretation and application gives investigators and operatives sufficient grounds to block the work of any enterprise. But unlike government agencies, business inaction leads to its decline and bankruptcy.
As for law enforcement officers, such activities are perceived as especially dangerous during war, when we are talking about enterprises that are strategically important for entire cities.
Thus, the result of the NABU’s work in the case of Novoyavorovskaya and Novorozdolskaya CHPPs was the emergence of losses from the activities of enterprises, which today the state is forced to cover. Although, before the arrest and transfer of central plants through the Agency for Tracing and Asset Management to the manager, both thermal power plants were profitable and paid taxes to the state budget.
At the same time, millions of hryvnias of taxpayers and months and years of man-hours are spent on clearly harmful activities of government bodies to ruin tons of paper, carry out meaningless investigative actions and operational activities, to which international partners are involved as part of legal assistance agreements.
But the most embarrassing thing is that “thanks to” the quality of the work of the anti-corruption bodies, the cities of Novy Razdel and Novoyavorovsk were actually turned into a testing ground for survival, where residents suffer, having lost a stable supply of heat and electricity in times that, even without this, cannot be called calm.
In addition, law enforcement officers do not stop and, within the framework of the same proceedings, are trying to seize and transfer to the management of ARMA the property of other enterprises that are in no way related to the acts incriminated against Ya. Dubnevich, thereby destroying a working business.
