Officials on their websites report on their success in managing seized property, but what is really happening?
In 2018, the property of the Novoyavorovskaya and Novorozdolskaya thermal power plants, which was arrested as part of criminal proceedings for gas theft, was transferred to the Asset Tracing and Management Agency. Officials report on successes in management, but documents obtained by journalists indicate that in fact, not all is well with this property.
To save value
In recent years, all mentions in the media about the Novoyavorovskaya and Novorozdolskaya thermal power plants were associated with a criminal case that was investigated by the National Anti-Corruption Bureau of Ukraine. According to law enforcement officers, the mentioned thermal power plants received natural gas from NJSC Naftogaz of Ukraine at a preferential tariff, but used it not only, as expected, to provide heating services and supply hot water to the population, but also for other purposes - for the production of electrical energy , where the industrial tariff would have to apply. Thus, according to investigators, the enterprises allegedly caused damage in the amount of UAH 2.2 billion. By decision of the detective, the thermal power plants were recognized as material evidence and they were seized. And by a court decision, the thermal power plants were transferred to the management of ARMA.
The Novoyavorovskaya and Novorozdolskaya thermal power plants belonged to politicians, people's deputies of the 8th convocation, brothers Bogdan and Yaroslav Dubnevich. After a criminal case was initiated, which was investigated by the National Anti-Corruption Bureau of Ukraine, the court arrested the thermal power plant, the property complexes were transferred to the Asset Tracing and Management Agency ARMA, which transferred the heating plants to the management of the private metropolitan company Garant Energo M. However, the new manager, according to ARMA, was unable to establish heat supply, and wage arrears arose for the employees of the thermal power plant, which is why people left the enterprises en masse. In addition, Garant Energo M owes UAH 380 million for gas consumed at the thermal power plant. The next manager of the two thermal power plants was Naftogaz Teplo LLC.
Indeed, according to the Criminal Procedure Code, any material objects that can be used as evidence of a fact or circumstances established during criminal proceedings are recognized as material evidence (Article 98). At the same time, the prosecution is obliged to store this evidence in a condition suitable for use in criminal proceedings. Everything is relatively simple and clear when it comes, for example, to a knife that was used to commit a crime, or a bag found in the pocket of a drug addict. But what about real estate, the value of which is measured in billions of hryvnia?
There is a special procedure here. Physical evidence worth more than 200 times the subsistence minimum, by decision of the investigating judge, is transferred to ARMA for the implementation of measures to manage it in order to ensure its safety or preserve its economic value (Article 100 of the Code of Criminal Procedure).
Procedurally, it looks like this: the investigator, in agreement with the prosecutor, or the prosecutor makes a request to seize property to the investigative judge of the local court, within the territorial jurisdiction of which the pre-trial investigation is being carried out (or to the investigative judge of the High Anti-Corruption Court, if, according to the rules of jurisdiction, the case should be considered by the HACS ).
The judge must consider it within two days, taking into account such factors as legal grounds, the possibility of using property as evidence, the amount of damage from the crime, the reasonableness and proportionality of the restriction of property rights and the consequences of the arrest, and based on the results, decide whether to satisfy the request of the prosecution or not (Article . Art. 171-173 Code of Criminal Procedure). If satisfied, the prosecutor must send a copy of the resolution to ARMA with a request to accept the assets, and also takes immediate measures to transfer these assets to the agency.
After this, responsibility for the safety of assets lies entirely with ARMA, which, in particular, selects managers for further business activities when it comes to arrested enterprises.
If we talk about Novoyavorovskaya and Novorozdolskaya CHPPs, then ARMA did not immediately work out with these enterprises.
First, the private enterprise “Garant Energo M” was appointed as the manager for thermal power plants. But his preparation of thermal power plants in the cities of Novoyavorovsk and Novy Razdel in the Lviv region for the 2019/20 heating season was considered unsatisfactory. Therefore, the relevant agreements with the state of emergency were terminated.
And, taking into account the current emergency situation, by decision of the ARMA Tender Committee a new manager was elected, who became Naftogaz Teplo LLC, part of the Naftogaz of Ukraine group of companies (that is, the victim in the criminal case mentioned at the beginning). According to the Agency, this company was able to ensure a stable heating season in both cities. At the same time, the selection of a new manager took place according to the so-called negotiation procedure. In order to apply the simplified procedure, we had to fear the possibility of a man-made emergency occurring in the Lviv region and adopt a separate order of the Cabinet of Ministers dated November 6, 2019 No. 1040-r. Later, the District Administrative Court of Kyiv recognized such actions to elect a manager of seized property complexes as illegal. ARMA was forced to prove its case on appeal.
Did Garant Energo M really fail to cope with its tasks, or was it used as a reason to promote the right company in a simplified manner? It is difficult to find an answer to this question today. However, according to ARMA, the fate of the enterprises is now in good hands, and the management results are complete success.
The arrested thermal power plants in the Lviv region are successfully completing the heating season and providing work for more than 550 workers. The agency reported this a year ago. The manager properly fulfills his responsibilities under the agreement with ARMA: all consumers of centralized services are provided with electricity, heat and hot water, and employees receive wages and pay unified social contributions. “Thus, the efforts of the manager of the arrested thermal power plants are an example of successful socially oriented activity, thanks to which tens of thousands of citizens receive public services, and property is properly preserved until the final court verdict,” ARMA experts conclude.
And now to the documents announced at the beginning of the material.
Formula for success
Today, production costs and financial performance indicators of business entities from the sale of thermal energy, as well as the provision of services for the supply of this energy and hot water, are taken into account in the form approved by Order No. 312 of the Ministry of Development of Communities and Territories of Ukraine dated December 16, 2019.
According to the established rules, the financial results of the activities of enterprises in the industry are determined by the following formula: other operating income and financial and other income from ordinary activities are added to the net income from the sale of thermal energy, supply of thermal energy and supply of hot water. Expenses of ordinary activities are deducted from the received amount. If the resulting number is greater than zero (expenses do not exceed income), then profit is recorded at the end of the reporting year. Otherwise, losses are recorded.
The editors managed to obtain these forms with data from Novoyavorovskaya and Novorozdolskaya CHPPs for 2020-2023.
It turned out that enterprises that were operating profitably before the arrest had suffered millions in losses over the past four years. That is, thanks to new managers, enterprises are constantly in need of help from the state.
Official information on the financial indicators of the Novoyavorovskaya and Novorozdolskaya CHPPs transferred to the management of ARMA for 2020-2023
The total amount of officially recorded losses reached UAH 557.6 million. That is, thanks to the management organized by ARMA, in the last four years alone, the state has spent a quarter of the losses that the prosecutor’s office has calculated, but not yet proven, on maintaining seized assets.
So can such management be considered successful, as the ARMA website reports? The consideration of the criminal case continues and it is unknown when the court decision on it will enter into legal force. It is also unknown whether the proceedings will end in a conviction with proof of the exact figure of losses and what it will be.
