"In Ukraine, it is easier to seize a business than to acquire it," according to a study conducted by the public organization Transparency International back in 2012.
According to current indicators, little has changed since then. For example, according to the 2016 results, Ukraine fell to 115th place out of 128 in the global Property Rights Index (last year, the country ranked 109th out of 129). In the regional ranking, Ukraine ranked 19th, second to last, in Eastern Europe and Central Asia, ahead of only Moldova.
Moreover, according to the Anti-Raider Union of Entrepreneurs of Ukraine, there are currently more than 30 raider groups operating in the country. Specifically, in 2015, approximately 3 raider takeovers were carried out, 2,7 of which were successful.
Undoubtedly, judicial and law enforcement agencies have become a reliable platform for implementing corporate raiding schemes in Ukraine. The determining factor in the effectiveness of such a mechanism is money, which always guarantees the correct decision. After all, money is the most convincing argument for Ukrainian law enforcement and judges.
Therefore, in the absence of a real evidence base, the Ukrainian Themis makes judicial decisions solely on the basis of witness testimony or the written positions of the parties, who “convince” the judges in advance of the truth of their arguments.
At the same time, the widespread practice of registering businesses outside of Ukraine gives Ukrainian entrepreneurs the opportunity to feel protected from outright corporate raids.
Accordingly, when attempting to seize a Ukrainian enterprise, raiders must deal not with national courts, but with foreign ones. Meanwhile, once abroad, these same raiders, due to their limited thinking and habit of working within corrupt law enforcement and judicial systems, believe that the methods of proof tested in Ukrainian courts will be effective in foreign courts as well.
A striking example of this erroneous approach is the attempted corporate takeover of Ukrainian agricultural enterprises by the notorious Lesia Sofienko, the common-law wife of Volodymyr Pekhov, a member of parliament of the 7th convocation from the Party of Regions, who is constantly trying to implement major projects.
Having entered into legal proceedings in a foreign court, the Limassol District Court (Cyprus), Lesya Sofienko attempted to use the once effective practice of influencing the court by giving false testimony and misleading the court.
Without going into the details of the trial, it's worth noting that Lesya Sofienko's false testimony, intended to gain control over the assets of Ukrainian enterprises, so outraged the judges that, disregarding diplomatic and legal language, they convicted her of lying.
The point is that foreign courts, unfamiliar with Ukrainian methods of defending one's interests in court, issue injunctive relief based on testimony provided to the court under oath, or, as they say in the West, "on one's word of honor." In doctrine, this practice is known as an "affidavit."
Most likely, Lesya Sofienko, due to her own ignorance of the specifics of conducting business litigation, as well as the weak legal position of her lawyers, failed to take into account that foreign courts, taking into account the testimony of the parties "on their word of honor," subsequently scrutinize every circumstance they voice with great meticulousness.
During the trial, which was conducted by the Limassol District Court, Lesya Sofienko, in an attempt to gain control over Ukrainian agricultural enterprises, deceived the court, making a number of false statements, hoping that her deception would never be discovered.
However, during the trial, it became clear that Lesya Sofienko not only provided false information to the court, but did so deliberately.
“The information received by the Court from Lesya Sofienko (paragraph 118 of her affidavit) is misleading in terms of the urgency of the application”, “Had Lesya Sofienko informed the Court of the present decision of the directors, the Court would have concluded that there was absolutely no basis for the decisions”, “The plaintiff’s (Lesya Sofienko) concealment of the existence of court case no. 2522/2015 constitutes a serious breach of the duty to give a full and frank statement of all material facts” - these are just some of the fragments of the decision of the Limassol District Court, in which Lesya Sofienko was convicted of deception.
As a result of the court's determination that Sofienko's testimony, which she gave "on her word of honor," was untrue, the court rejected all of her claims.
This court decision will undoubtedly have extremely negative consequences for Lesya Sofienko and will establish her in the eyes of foreign judges as someone whose words will immediately be presumed to be at odds with reality.
Ukrainian law enforcement officials may also classify Lesya Sofienko's actions as an attempt to seize someone else's business, which will become another problem in addition to the 27,5 million francs previously frozen by Switzerland in the Credit Suisse bank accounts of the offshore company Cinsten Investments Limited (Belize), of which she is the ultimate beneficial owner.
And, importantly, this isn't the first time Lesya Sofienko has had serious legal troubles. Back in 1999, she was charged with the murder of Vyacheslav Yushta, vice president of Energotransinvest JSC and president of the Ukrainian-Bangladeshi joint venture YUSOF. At that time, Lesya Sofienko spent more than ten days in the Lukyanivka pretrial detention center.
Thus, short-sighted Ukrainian corporate raiders mistakenly believe that the same tricks will be played in foreign courts as in Ukrainian ones. This also applies to the groundless illusion that if their testimony is found to be false, they will not be held accountable.
Olga PARMAZ
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