This scheme for robbing cargo passing through customs, which stunned me with its simplicity and brazenness, has been around for a long time, but suppliers continue to be robbed because the public is unaware of any means of combating this corporate raiding. Well, it needs to be fixed! I'm providing a diagram with solutions.
It's no secret that when loading goods at a warehouse, both what's listed and what's not can be mistakenly loaded. It's common. The law provides a mechanism for returning erroneous shipments without paying customs duty. So, the supplier writes "I request you return the erroneously shipped goods" to the recipient and customs, and the goods are returned. But the tax service, they're not stupid, so why just return them? The tax service will try to seize the goods at the slightest semblance of a violation, and not just the erroneously shipped portion, but the entire shipment. It's a matter of millions. Why not take advantage of it?
To register a violation, some kind of reason is needed. What kind? It's easy: the tax service's top analysts write up some kind of memo about a company's tax evasion, and then the tax service suddenly takes a keen interest in the company and its cargo. Admittedly, it only takes about three days after the cargo is stopped at customs. But how do you stop the cargo? Here's a specific example that makes me smile: a delivery driver for a carrier was traveling to Kyiv customs from Poland, where the cargo was supposed to be accepted and processed. Following a letter from the Kyiv Ministry of Revenue and Duties, the driver, along with the vehicle and cargo, were caught 500 meters before the Lviv customs post and literally shoved into the post. The driver had the main cargo and the mistakenly loaded one, which the owner (OXO Networks Corp) had already sent a letter requesting its return. Naturally, Lviv Customs ignores the owner's letter and begins enthusiastically recording the violation, claiming the cargo doesn't match the documents and, therefore, is being confiscated. Moreover, they confiscated everything worth millions (the main cargo and the mistaken one) and filed a report against the driver (Inspector S.D. Butov). I would like to draw the attention of all suppliers to the moment the administrative violation report is filed against the driver. After you win all the court cases and receive decisions to return the "timchasovo viluchenoy mayn," the violation report filed by the customs officer against the driver will play a fatal role. But first things first.
So, customs seized the cargo. The next day, the tax service, in a last-ditch effort to combat crime, enters something like "suspicion of tax evasion" into the Unified Register of Pre-Trial Investigations and begins an "investigation." The investigation typically boils down to a court filing a motion for temporary seizure of the property. From that point on, the tax authorities take possession of the cargo. However, I've read court decisions (Shevchenkivskyi District Court of Kyiv, No. 761/5229/14-k) where the Kyiv tax authorities managed to seize the cargo without any criminal charges. In other words, they filed charges against the recipient legal entity, which hadn't yet become the owner, and seized it from the owner (OXO Networks Corp). And nothing happened. Five months passed before the owner won the case. But investigator M.V. Fedosov (Kyiv Ministry of Revenue and Duties) never seized the temporarily confiscated property. A mistake? Dear entrepreneurs, you must challenge the confiscated property within two days of its seizure. Simply because the Ministry of Revenue and Duties will have no legal grounds to seize it, you'll have to return it. No, they won't return it, but at least they'll be careful not to steal the cargo.
In the case I'm describing, investigator M.V. Fedosov (Kyiv Ministry of Income Tax and Revenue) is completely unaware of the situation and continues to hold onto the cargo, even after a court order to return the temporarily seized property. Dear businessmen, if you don't file a criminal complaint against these Fedosovs under Part 2 of Article 382 of the Criminal Code of Ukraine, "The decision to impose a legal penalty, to resolve the violation of the law, or to rescind their obligations... by a special service officer," you will lose your property. In general, it is necessary to file immediately “Part 2 of Article 191 of the Code of Ukraine of the Criminal Code of the Russian Federation” on the second day after the seizure of the property has not been imposed, but it has been “temporarily seized.”
But investigator Fedosov continued to stubbornly hold onto the property until a complaint was filed against him with the Prosecutor General's Office (by the way, this measure is absolutely necessary; file the complaint immediately). Three months after filing the complaint with the Prosecutor General's Office, Fedosov realized he had opened the case illegally and closed it. Meanwhile, the owner of OXO Networks Corp. had already received a court order obligating him to return the property. So what? And then we remember the driver. A year later, Lviv Customs remembered that the administrative violation report against the driver hadn't been reviewed and sent the report to court. The court, missing the six-month deadline, held the delivery driver accountable and... (in the case of OXO Networks Corp.) fined him 16 million (!) hryvnias and confiscated ALL the goods. Those guys got what they wanted by hook or by crook. If they couldn't hide it as "temporarily seized," they confiscated it. Yes, it was illegal, but the court's decision was final and cannot be appealed. You can read this gem: on the right, 461/12327/14-p Provision No. 3/461/2485/14, Judge Misko, on the right, 461/12327/14-p Provision No. 33/783/15/15, Judge Urdyuk. Formally and legally, the cargo is lost to the owner. Procedural law only provides for the European Court of Human Rights. Is that right?
I hate to see businesses being screwed over like this. No, businessmen, that's not it. You have the right to file for a review of the decision on newly discovered offenses. Simply because your interests are affected, not just the driver's. Because administrative offense cases are heard according to the rules of the Administrative Offenses Code of Administrative Offenses (CAO Administrative Offenses) (Article 529, Part 1). Because even someone who wasn't involved in the case, but whose interests were affected, can file for a review (Article 246, Part 1, CAO Administrative Offenses). Because you'll definitely have facts that were unknown to you and the court at the time the decision was made (Article 245, Part 2, CAO Administrative Offenses). Not all is lost, don't despair! Scoundrels must be punished. If you apply all this, you'll see how judges who have to consider such claims on newly discovered offenses become stained. You'll enjoy it, believe me. And one more thing. All this will be pointless unless you file criminal charges against everyone involved for being robbed. Below is a diagram of how law enforcement officers should proceed and a specific list of classifications under the Criminal Code:
— stopping goods/cargo at a customs checkpoint and drawing up a violation report against the driver, which lacks reliable facts to support the owner and driver's case (law enforcement will need this report to confiscate your goods if you win all other cases) – Article 366 of the Criminal Code of Ukraine, drawing up and issuing a knowingly false document (against a customs inspector)
- temporary seizure and retention of goods/cargo without subsequent seizure - Article 365 of the Code of Ukraine (excess of authority) and Part 2 of Article 191 of the Code of Ukraine (trapping someone else's main road and misusing one's own service station) (for the investigator)
- non-delivery of temporarily seized goods to you by a court decision - Part 2 of Article 382 of the Criminal Code of Ukraine “Umisne nevikonannya viroku, rishenya, praise, ruling to the court, which has gained legal force, or overstepping their vikonannya... committed by an official” (on the investigator)
— confiscation of your cargo by court order through prosecution of the delivery driver for allegedly violating customs regulations – Article 375 of the Criminal Code of Ukraine (Decision of a court with a knowingly unjust decision). This is precisely the case, because this scheme is ALWAYS applied with delays as a last resort. Its peculiarity is to quickly, with violations of everything, review everything so that the decision comes into legal force, the goods are confiscated, and then nothing happens. Someone will instantly enrich themselves by millions. You will lose these millions (and not your personal money, but your business). So don't be lazy in reporting the judge. Judges cannot help but know that the administrative liability period is six months. In other words, in this case, they are definitely deliberately making an illegal decision in favor of customs. The country should know its heroes (in the cases I cited – Judge Misko of the Halytsky District Court of Lviv, Judge Urlyuk of the Lviv Regional Court of Appeal).
That's how law enforcement lives. What a mess! You've reached an agreement with customs, but they've violated everything possible – they've dragged the cargo to "their" customs point, where the owner won't have time to get there. They've filed a report, confiscated the cargo, called their friends at Mindoh, who've already filed a criminal case and are rushing off with a court order for temporary confiscation, which will become permanent. This should be punished. And what legally belongs to you must be returned. Yes, it's a lot of work, but it's your interests that matter. Keep track of the drivers' reports. Simply because Article 465 Part 3 of the Customs Code of Ukraine stipulates that “Confiscation of goods, transport means, specified in paragraph 3 of Article 461 of this Code, is subject to independent authority individuals who committed the crime."
It's sad that the rules for business survival in our country still represent a vertical race against law enforcement, who are trying to steal from businessmen, harassing them from every angle until they're too weak to resist. Incidentally, in the example I cited, the Ministry of Revenue in Kyiv had a problem – they seized a non-resident's cargo (OXONetworks Corp). And such companies are capable of resistance. I hope our Ukrainian businessmen will also protect themselves, no matter how much customs resists. Don't give up. Punish everyone! Our country needs to be better.
Natalya Kashkevich (“Spilka Budivelnikiv Donbas”), specially for ORD
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