The case of Novoyavorovskaya and Novorazdolskaya CHPP, which began in 2018, is called one of the most difficult in the history of NABU and SAPO. Today, the investigation materials number more than 350 volumes. It is interesting that such a volume of law enforcement work is associated with the absence of one important element of the crime under investigation. And this gap can be used against Ukraine.
Tariffs and technologies
The National Anti-Corruption Bureau of Ukraine is conducting a pre-trial investigation in criminal proceedings regarding the seizure of two thermal power plants with natural gas from NJSC Naftogaz of Ukraine, which caused material damage in the amount of 2.2 billion. Since the enterprises are associated with the current people’s deputy Yaroslav Dubnevich, anti-corruption officials today charge him with organizing a crime under Art. . 191 (Appropriation, embezzlement of property or taking possession of it through abuse of official position) of the Criminal Code of Ukraine.
During 2013-2017 power plants, on the basis of concluded agreements, received natural gas from Naftogaz, which was used in the production and technological process of its combustion in two directions: for the production of thermal energy for the population and for the production of electrical energy sold by the state enterprise Energorynok.
According to law enforcement officers, since gas was supplied at a preferential rate, it should have been used only for providing heating services and supplying hot water to the population. After all, for the production of electrical energy there is an industrial tariff, which is much higher. It was because of the use of part of the gas by the thermal power plant for purposes other than intended by Naftogaz that the damage was caused.
But in terms of its natural properties, gas is the same for the purposes of producing both thermal and electrical energy. And the technological capabilities to establish from which gas this or that energy was produced are missing today. There are also no methods for distributing natural gas for its intended purpose. So the question arises, how were Naftogaz’s losses determined and calculated? Indeed, in the understanding of the Criminal Code, they are precisely the harm, the extent of which determines the degree of responsibility. And this is where questions begin to arise.
Bonuses instead of losses
To provide users with complete, truthful and impartial information about the financial condition and results of operations of any enterprise, the law provides for the obligation to maintain accounting records and prepare financial statements. Financial, tax, statistical and other types of reporting that use a monetary meter are based specifically on accounting data.
The Law “On Accounting and Financial Reporting in Ukraine” actually provides for the documentation of any information about the actual and potential consequences of business transactions and events in the enterprise that may affect decisions made on its basis.
The basis for accounting for business transactions are primary documents (contracts, invoices, sales receipts, certificates of work performed, accounting statements, invoices, etc.). The information contained in them is systematized on accounting accounts in synthetic and analytical accounting registers by double recording them on interconnected accounting accounts. And it is on the basis of accounting data that the enterprise prepares and presents financial statements.
If we look at Naftogaz’s accounting and financial statements on the results of its work, it turns out that there was no damage from the implementation of agreements with Novoyavorovskaya and Novorozdolskaya CHPPs. So it is also inappropriate to talk about the damage caused.
By the way, the financial results of Naftogaz have already been the subject of research by the media, which published general data on the company’s losses and profits in different years. Also, the constant interest of the media was aroused by the mechanism for the formation of administrative expenses in accordance with the collective agreement (salaries, bonuses, social benefits) and bonuses for the management of the enterprise based on the results of work.
So, for example, the company ended 2016 (when, according to investigators, gas from the thermal power plant was stolen from Naftogaz) with a profit of 26.5 billion hryvnia. At the same time, members of the board received 51 million hryvnia in remuneration for quality work.
Objective side
In criminal law, there is a concept of corpus delicti, within which investigators and judges classify certain acts as unlawful.
This composition presupposes the mandatory presence of four elements: 1) object - values that are encroached upon by the crime; 2) the objective side - the event itself; 3) the subject - the person accusing of committing a crime and 4) the subjective side - the person’s guilt, intent or negligence. And if at least one element of the composition is missing, there is no crime!
And Article 191 of the Criminal Code, which provides for liability for the seizure of someone else’s property by an official abusing his official position, provides, in the objective sense, the occurrence of socially dangerous consequences as its obligatory feature. Lawyers call the material elements of a crime. At the same time, since the damage in the gas case is not formally documented, there is no objective side, that is, the events of the crime itself!
If it is established that there is no corpus delicti of a criminal offense or an event of a crime in the act, then according to the rules of Art. 284 of the Criminal Procedure Code (the law defining the rules for the investigation and trial of crimes), the proceedings must be closed.
See you in Strasbourg
Where did law enforcement officers get the damage? Obviously, this is a separate topic of research. But it is clear that Naftogaz’s accounting and financial statements were not taken into account when calculating the damage. And perhaps that is why the case consists of such a stack of volumes of papers, which by their quantity are intended to replace the quality of the work and its compliance with the requirements of the codes.
And this gap, if the Ukrainian Themis does not take it into account, will definitely become the subject of special attention in the European Court of Human Rights, which in its decisions adheres only to the priority of rights and fundamental freedoms. And these are yet another million-dollar payments from the state budget, that is, from the pockets of citizens.
It is noteworthy that the anti-corruption authorities of Ukraine (National Anti-Corruption Bureau, Specialized Anti-Corruption Prosecutor's Office, High Anti-Corruption Court) have taken up the economic case so diligently. And they look for corruption in relations between business entities, and not in the public sector. And, according to practicing lawyers, such a trend in work today actually takes place. For businesses considering the prospects of investing in the Ukrainian economy, this is hardly a good sign.
