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Investigation of individual terrorist crimes

11.01.2021
Yevgeniy Zakharov

In 2013 there were only 4 criminal cases in the SSU proceedings concerning the terrorist acts. In 2014-2019 the investigators from SSU most often used Article 258 of the CC of Ukraine (terrorist act) and Article 258-3 of the CC of Ukraine (the creation of a terrorist group or a terrorist organization) for qualification of terrorist crimes. Thus, according to the site of the Prosecutor General’s Office of Ukraine, 5644 criminal proceedings were registered under Article 258 in 2014-2019, in 130 cases the notices of suspicion were given, 65 proceedings were sent to court with the bill of indictment. 1875 criminal proceedings were registered under article 258-3, notices of suspicion were handed in 932 proceedings, 301 proceedings were sent to court with the bill of indictment.

Most of the crimes qualified under Article 258 concerned the actions of the members of illegal armed formations in the context of seizing control over the parts of Donetsk and Luhansk oblasts and subsequent armed conflict. Before 2018 the Government of Ukraine had not recognized directly the presence of the armed conflict in the East of Ukraine, officially naming it the anti-terrorist operation. Accordingly, many crimes committed in the context of the armed conflict in the East of Ukraine are wrongly qualified as terrorist acts according to the relevant legislation, and this explains such a great number of criminal proceedings under article 258, in which investigation did not actually take place.

For example, in 2016-2017 the lawyers from Kharkiv Human Rights Protection Group sent many requests for opening criminal proceedings, forcing SSU to open 263 criminal proceedings concerning the facts of death or injuries of civilians in the government-controlled territory, the destruction of homes and other property due to the shelling etc. Despite those requests, the investigative actions were not taken and the investigation was inefficient. The investigators refused to provide the victims of the crimes with the official victim status, thus denying them and their lawyers the access to case file materials on pre-trial investigation stage. Furthermore, the necessary investigative actions were not taken, such as examination of the scene of a crime, collection of the witnesses’ evidence, and, in case of requests for carrying out the necessary investigative actions, the investigators either did not react, or only carried out individual investigative actions (often through redirecting those requests to other bodies of investigation). Furthermore, no special investigative actions concerning the hostilities were carried out (such as determination of the direction, distance and effects of the shelling; types of used weapons/military transport etc). As a result, after exhausting all domestic remedies in 136 such cases, the lawyers from KHPG filed the individual applications to ECtHR against Ukraine and Russia, explaining the violation of Articles 2 or 3 of ECHR by Ukraine’s inaction.

A great number of criminal proceedings under Articles 258 and 258-3 of the CC of Ukraine requires a long time for their thorough studying, therefore we would limit ourselves with the general observations.

The analysis of the criminal proceedings concerning the terrorist financing (Article 258-5) and the financing of the actions committed for the purpose of the forcible change or overthrow of constitutional order or seizing of state power (Article 110-2) is relevant and provided below.

The practice of application of Article 258-5 of the CC of Ukraine

This article is worded in the following terms:

Article 258-5. Financing of terrorism

1. Financing of terrorism, i.e. acts committed with the purpose of financial or material support of an individual terrorist or a terrorist group (organization), organization, preparation or commission of an act of terrorism, involvement in a terrorist act, public incitement to commit a terrorist act, to facilitate the commission of a terrorist act, the creation of a terrorist group (organization),

shall be punishable by imprisonment for a term of five to eight years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to two years and with forfeiture of property.

2. The same actions committed repeatedly or for selfish motives, or by a group of persons upon their prior conspiracy or on a large scale, or if they caused significant property damage, –

shall be punishable by imprisonment for a term of eight to ten years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years and with forfeiture of property.

3. Actions envisaged by paragraph 1 or 2 of this Article committed by an organized group or on a large scale, or if they caused other grave consequences, –

shall be punishable with imprisonment for a term of ten to twelve years, with the deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years and with forfeiture of property.

4. Person other than an organizer or leader of a terrorist group (organization) is exempted from criminal liability for actions under this Article, if he/she voluntarily informed about appropriate terrorist activities or otherwise contributed to its suspension or prevention of crime, which it sponsored, or commission which has contributed, upon condition that his/her actions do not constitute another crime.

Note. 1. Financing of terrorism shall be deemed as large if the amount of financial or material support exceeds 6000 tax-free minimum incomes.

2. Financing of terrorism shall be deemed as especially large if the amount of financial or material support exceeds 18000 tax-free minimum incomes.

The summarized data concerning the investigation of the crimes qualified under Article 258-5 is taken from the site of the Prosecutor General’s Office, and concerning the court decisions under that Article – from the Unified Register of Court Decisions, and compiled in the table:

Article 258-5 of the CC of Ukraine

2014

2015

2016

2017

2018

2019

Total

Criminal proceedings registered

48

93

72

60

45

192

510

Suspicions of crime handed

4

8

7

14

14

13

60

The number of proceedings sent to court with the bill of indictment

2

5

2

7

11

4

31

The number of petitions for release from criminal liability

1

1

1

4

   

7

The number of closed proceedings

4

29

13

2

5

17

70

The number of proceedings concerning which the decision to terminate or suspend them was not taken by the end of the year

43

84

66

47

33

25

 

The number of sentences delivered by first=instance courts

1

4

4

7

8

10

34

The small number of notices of suspicion is striking comparing to the number of the registered criminal proceedings – 11.8%, by years: 2014 – 8.3%, 2015 – no more than 8.6%, 2016 – no more than 9.7%, 2017 – no more than 23.3%, 2018 – no more than 31.1%, 2019 – no more than 6.8%.

Individual sentences delivered by the courts are pretty strict. 11 sentences provided for the actual deprivation of liberty, one of them – arrest for 5 months, 2 sentences – 5 years of the deprivation of liberty without forfeiture of property, and 8 sentences with the forfeiture of property: 1 sentence – 15 and 14 years, 3 sentences – 10 years, 3 sentences – 8 years, 1 sentence – 5 years and 1 month of imprisonment. 13 sentences that provide for 5 years of imprisonment were delivered with a probationary period: in 10 of them the probationary period is 3 years, in 3 others the probationary period is 2 years.

In two sentences the punishment was in the form of fine with forfeiture of property: 20000 and 5900 tax-free minimum incomes, in 8 sentences – a fine without forfeiture of property, in the amount of 50000, 25000, 20000, 15000, 11800, 8800, 3000, 2500 minimum incomes. We would reiterate that those decisions imply that tax-free minimum income is UAH 17.

At the same time in 23 cases (67.6%) the court approved a plea agreement with the prosecutor. In 25 cases (73.5%) the courts applied Article 69 of the CC of Ukraine – the application of a more lenient punishment than the one provided by the law (in 15 of those 25 cases the court approved a plea agreement with the prosecutor). Meanwhile in 21 a preventive measure in the form of detention was chosen for the time of investigation and trial, in 8 cases a preventive measure was not chosen.

5 cases were considered by the courts in the special court proceedings under Article 323 of the CCP of Ukraine in absentia. The presence of the applicants in those cases was purely formal (except one case): they were only mentioned in the part with the list of the participants of the procedure.

Annex 1 contains the short data on the delivered sentences – the dates of the sentences, court names, data from the operative part of the sentence.

The review of the court decisions under Article 258-5 shows that they can be divided into 4 groups.

In the first group (6 sentences) the defendants were punished for their support of the terrorist organizations “DPR” and “LPR” through the transferring or sending their own money or other items. Thus, an engineer from Zaporizhya NPP transferred UAH 3350 to his separatist friend in LPR, another defendant transferred UAH 3250, and yet another – UAH 30 000. From their own savings. Another defendant acquired medicines and items and sent two parcels through “Nova Poshta”, weighing 10 and 7.5 kilos.

One case, in our opinion, ended up in this category due to a misunderstanding. The sentence in it was delivered on 17 November 2017 by Kominternivsky District Court of Odesa region, a plea agreement with the prosecutor was approved and the defendant received punishment with the application of Article 69 of the CC of Ukraine, under pt. 1 of the Article 258-5 of the CC of Ukraine – 5 years of imprisonment with 2 years of probation for such offence.

In May 2014, a more accurate date was not established by the pre-trial investigation, the defendant, PERSON_1, being aware of the fact of anti-terrorist operation on the territory of Luhansk region and of the participation of PERSON_3 in the armed opposition to the lawful actions of the officers of the law-enforcement bodies of Ukraine and members of Armed Forces of Ukraine on the territory of Luhansk region and PERSON_3’s intent to continue his criminal activity, being at the place of registration and former residence of PERSON_3 at the address: ADDRESS_2, acting with the purpose of material provision of an individual terrorist – PERSON_3, received from his mother, PERSON_4, who was not aware of his criminal intent, the following items: a belt, a shoulder-belt, camouflaged jacket and pants (colored flecktarn-d), a flask.

Subsequently, PERSON_1 with the purpose of material provision of PERSON_3, at his own expense sent the above-mentioned items via the post operator “Nova Poshta”, from Department No. 13, which is located at the address: Odesa, Semena Paliya st. (former name – Dnipropetrovsk road), building 82, to PERSON_3 in Lutuhine town of Luhansk region, which at the time was not controlled by the Ukrainian government.

Being a member of the “special division of Luhansk people’s liberation battalion «Zarya» of the Ministry of Defense of the terrorist organization «Luhansk People’s Republic»since June 2014, PERSON_3 used the above-mentioned military uniform and items sent by PERSON_1 during the armed opposition to the lawful actions of the members of the law-enforcement bodies of Ukraine and Armed Forces of Ukraine involved in ATO on the territory of Luhansk region, as well as other crimes as a part of IAF of the terrorist organization “LPR”.

Thus, Person_1 is reasonably accused of the criminal offence (crime), envisaged by pt. 1 of Art. 258-5 of the CC of Ukraine, namely the financing of the terrorism, meaning the actions committed with the purpose of material provision of an individual terrorist”.

In the second group there are 7 sentences, they were delivered for the establishment of financial institutions for serving the residents of the temporarily occupied territories. For example, here is a fragment of such sentence:

Furthermore, in August 2015 PERSON_1 in Luhansk, being aware thatLPRcommits terrorist acts on the territory of Ukraine, performs armed opposition to the law-enforcement bodies and Armed Forces of Ukraine, directed at the change of the territorial borders and state control in unlawful way, decided to provide financial support for criminal activities of the above-mentioned terrorist organization. Subsequently PERSON_1, knowing of the deficit of cash on the financial market of the temporarily occupied territory of Luhansk region, the absence of the banking institutions of Ukraine and the problems with provision of the participants of the terrorist organization “LPR” with the necessary cash, deliberately created on the territory of Luhansk city a financial institution of the terrorist organization “LPR” – a non-banking commercial firm «ROSFINGROUP», which is located in the regional center on Gradusova st., 4/132. At the same time PERSON_1 with the purpose of creation of a fictional financial welfare and stability on the territory temporarily controlled by the terrorist organizationLPRand for his own enrichment founded and headed the work of the firm «ROSFINGROUP» under a guise of financial services company which provided the transfers, provided the members of the terrorist organization “LPR” with cash from their banking accounts, currency exchange, provision of activity of currency exchange points, provision of other financial and informational services withholding interest on it”.

Sometimes the problems of the deficit of cash were solved without the creation of a legal entity. Thus, on 6 February 2018 Bilokurakinsky district court of Luhansk region delivered a sentence, which approved a plea agreement with the prosecutor and prescribed the punishment in the form of the fine in the amount of UAH 255 000 (15000 minimum incomes) without the forfeiture of property. The sentence contains the following.

The accused, PERSON_1, with the aim of creating fictional financial welfare and stability on the territory temporarily controlled by the terrorist organization :LPR”, for his own enrichment, developed a criminal intent, directed at creation of the organized scheme of provision of the financial services on the temporarily occupied territory: giving cash to the members of the terrorist organization “LPR” in Ukrainian and Russian currencies from their banking accounts opened in the banking institutions of Ukraine, currency exchange, withholding the interest for the provision of services.

For the implementation of the criminal plan PERSON_4 undertook a role of searching for the persons on the temporarily occupied territory of Luhansk region, which are unable to leave the temporarily uncontrolled by Ukrainian government territory to the territory controlled by Ukraine and withdraw the funds from their bank cards on their own. Then PERSON_4 collected cards from such clients and with the help of a resident of Bile town in Lutuhine district of Luhansk region, PERSON_5 (who was not aware of the criminal activity of PERSON_4), on his own transport, following the route between Lutuhine town of Luhansk region and Kharkiv city, systematically carried out transportation and transfer of the specified bank cards to PERSON_1. Subsequently PERSON_1 received cash through the ATMs of the Ukrainian banks in Kharkiv city. After receiving the cash, PERSON_1 have transferred it to PERSON_5, who transported it to Lutuhine on his way back to give it to PERSON_4, providing the further illegal functioning of the financial scheme, giving cash to the clients and his personal financial enrichment.

For those services PERSON_1 in collusion with a representative of the terrorist organization LPR”, PERSON_4, equally received from the clients 10 percents of the total amount of the money withdrawn from their banking cards. According to the information received during the pre-trial investigation, between February 2015 and September 2017 PERSON_1 withdrew from the bank accounts of the clients of the scheme in the total amount of UAH 11 597 542 (eleven million five hundred and ninety seven thousand five hundred forty two), which were withdrawn through the ATMs of Ukrainian banks in Kharkiv city. Therefore, PERSON_1, being in a criminal conspiracy with a representative of a terrorist organizationLPR”, PERSON_4, earned twelve – ten percents of the total amount of withdrawn costs, namely UAH 503 028 of which UAH 251 514 were given to PERSON_4.

Thus, since February 2015 PERSON_1, knowing that PERSON_4 is a representative of the terrorist organizationDonetsk Peoples Pepublic”, committed unlawful actions with the purpose of his financial enrichment with cash for the total amount of UAH 251 514. The pre-trial investigation body correctly qualified the actions of PERSON_1 under pt.1 of Art.258-5 of the CC of Ukraine, as financing of the terrorism, meaning the actions committed with the purpose of financial or material provision of an individual terrorist, for selfish motives”.

11 sentences of the third group punish for the financing of activity of a terrorist organization by creating a business entity on the temporarily occupied territory and paying the so-called “taxes” unforeseen by the current legislation to the so-called “budget” of the self-proclaimed republics which are subsequently used by their representatives for reaching the criminal goals”.

For example, on 5 February 2018 Bilokurakinsky District Court of Luhansk region delivered the sentence which approved the plea agreement with the prosecutor and delivered the punishment in the form of the fine in the amount of UAH 425 000 (25000 minimum incomes) without the forfeiture of the property, the accused was released from custody in the courtroom. As stated in the sentence,

In October 2014 (more accurate date was impossible to determine during the pre-trial investigation) a resident of Ukraine PERSON_1, INFORMATION_5… developed a criminal intent directed at financing the activity of a quasi-state formation – terrorist organization “LPR”. Providing the execution of the work plan, with the aim of profiting, on 7 October 2014 PERSON_1, was appointed by the leader ofLPRthe Acting General Director of the state enterprise «Лутугинський науково-виробничий валковий комбінат» (Lutuhyne Research and Production Rolling Mill) (USREOU code 00187369, Luhansk region, Lutuhyne town, Zavodska st.,. 2), and subsequently on 26 March 2015 “the head of the Council of Ministers of LPRappointed him the General Director of that enterprise, after which he resumed the financial and economic activities of the enterprise on the territories of Luhansk region uncontrolled by the government of Ukraine, producing the rolls, and unlawfully (without the permission of the governing body of the state enterprise – State Agency for Management of State Corporate Rights and Property of Ukraine) carried out the so-called “state registration” of SE “LRPRM” in the tax bodies of the so-called “LPR” under USRLE code 61201066, at the address of. Lutuhyne town, Zavodska st., 2. Furthermore, to make non-cash payments by the enterprise to “LPR State Bank” (MFI 400008, Luhansk city, T. Shevchenko st., 1) he opened the current account.

According to the tax reporting of the so-called State Committee for Taxes and Duties of theLPR”, on 01.12.2015 SE Lutuhyne Research and Production Rolling Mill” paid “sales tax” in the amount of RUB 500000.00 (five hundred thousand) Russian rubles (according to the official hryvnia to ruble exchange rate of NBU this amounts to UAH 139337,866)”.

Other actions are not incriminated to the accused.

10 sentences of the fourth group also punish for the financing of the terrorist organizations “DPR” and “LPR” through payment of the so-called “taxes” to the “budgets” of the self-proclaimed republics, but me divided them into a separate group, since those cases concern import of food, beverages and non-food products to the self-proclaimed republics ( in one case – the export of the products to the controlled territory).

Annex 1 contains short data about the sentences – the dates of the sentences, court names, data from the operative part of the sentence. They could be found in the reference in this link.

The application practice of Article 110-2 of the CC of Ukraine

Article 110-2 is introduced to the Criminal Code of Ukraine by the Law No. 1533-VII of 19.06.2014 and it is worded the following way:

Article 110-2. Financing of actions committed for the purpose of forcible change or overthrow of the constitutional order or seizure of state power, change of borders of the territory or state border of Ukraine

1. Financing of actions committed to change the borders of the territory or state border of Ukraine in violation of the procedure established by the Constitution of Ukraine, –

shall be punishable by imprisonment for a term of three to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years and with forfeiture of property.

2. Financing of the actions taken to forcibly change or overthrow the constitutional order or seize state power, –

shall be punishable by imprisonment for a term of five to seven years with deprivation of the right to hold certain positions or engage in certain activities for up to two years and forfeiture of property.

3. The actions provided for in parts one or two of this article, committed repeatedly or for selfish motives, or by prior conspiracy by a group of persons, or on a large scale, or if they have caused significant property damage, –

shall be punishable by imprisonment for a term of six to eight years with deprivation of the right to hold certain positions or engage in certain activities for up to three years and forfeiture of property.

4. Actions provided for in parts one or two of this article, committed by an organized group or on a particularly large scale, or if they have led to other serious consequences, –

shall be punishable by imprisonment for a term of eight to ten years with deprivation of the right to hold certain positions or engage in certain activities for up to three years and forfeiture of property.

5. A person other than the leader of an organized group shall be released from criminal liability for the actions provided for in this article., if he/she voluntarily stated what had happened before he/she was notified of suspicion, to the body whose official is entitled by law to notify of the suspicion, about relevant unlawful activity, or otherwise contributed to the cessation or prevention of a crime which he/she financed or facilitated, provided that his/her actions did not constitute another crime.

Note. 1. The financing of actions provided for in this Article shall be actions taken for the purpose of their financial or material support.

2. Financing of actions committed for the purpose of forcible change or overthrow of the constitutional order or seizure of state power, change of territorial borders or state border of Ukraine, is considered committed in a large amount if the amount of financial or material provision exceeds six thousand nontaxable minimum incomes.

3. Financing of actions committed for the purpose of forcible change or overthrow of the constitutional order or seizure of state power, change of territorial borders or state border of Ukraine, is considered committed in a particularly large amount if the amount of financial or material provision exceeds eighteen thousand nontaxable minimum incomes.

The summarized data on the investigation of the crimes qualified under Article 110-2 are taken from the site of the Prosecutor General’s Office, and as for the court decisions under this Article – from the Unified Register of Court Decisions, and compiled in the table:

Article 110-2 of the CC of Ukraine

2014

2015

2016

2017

2018

2019

Total

Criminal proceedings registered

3

5

8

25

146

330

517

Notices of suspicion handed

3

5

10

70

116

204

The number of proceedings sent to court with the bill of indictment

1

6

54

60

121

The number of petitions for release from criminal liability

2

1

34

37

The number of closed proceedings

1

1

1

2

11

16

The number of proceedings concerning which the decision on termination or suspension was not taken by the end of the year

2

2

7

19

85

28

 

The number of sentences delivered by first-instance courts

1

2

5

10

18

The quick increase in the number of opened criminal proceedings in 2018-2019 draws attention. The number of handed notices of suspicion is lower, and even lower is the number of sentences approved by courts – only 14.9% of the number of the bills of indictment sent to courts.

Only one of 18 sentences provides for the real imprisonment for 8 years with forfeiture of property. It was delivered in the special court proceedings in absentia for Kateryna Matyuschenko, Minister of Finance of the DPR. One sentence delivered the fine in the amount of 15000 minimal income, i.e. UAH 255 000. 16 other sentences provide for the punishment with probation (88.9%). 7 sentences were delivered in the form of imprisonment for 5 years with probationary period for 3 years (one of them provides for additional punishment – deprivation of right to hold certain positions and perform certain activities for 1 year) and 9 sentences that provide for imprisonment for 3 years with probationary period for 1 year (5 sentences), 2 years (4 sentences, 3 of them contain additional punishment – deprivation of right to hold certain positions and perform certain activities for 1 year).

Such sentences were the results of plea agreement with the prosecutor in 12 cases (66.6%), in 6 of those 12 cases the court applied Article 69 of the CC of Ukraine – the application of punishment below the lowest level of the sanction.

Annex 2 contains the short data about the sentences – the date of the sentence, court name, the data from the operative part of the sentence. They can be downloaded at the link here. A preventive measure (detention) was chosen in 6 cases, the bail was used in one case.

What actions were punished in those sentences?

7 court decisions concerned the transfer of the money by the persons supporting the terrorist organizations and wishing to help them with their own money. Thus, the sentence delivered on 19 November 2018 by Kyiv District Court of Kharkiv city states that the accused for personal political beliefs developed a criminal intent directed at financing the actions committed with the aim of the forcible change or overthrowing of the constitutional order or seizing of state poser, through transferring money with the aim of their subsequent use to support the army of the self-proclaimed “DPR”, and he transferred UAH 1380 to the charitable fund “Dobrota” in Donetsk designating the payment as “assistance to the army of DPR”. As stated in the sentence, the accounts of that fund “were receiving various money which through various payment and transfer systems, were sent to the fund Humanitarian volunteers of Novorossia” (Donetsk city) with the aim of help and support of activity of those organizations in the East of Ukraine in the form of procurement of equipment, uniforms and medicines for the so-called division of the 100th Separate Motorized Rifle Brigade of the Republican Guard of “DPR” – of “Kupol” brigade”. However, the “Dobrota” fund, which out of principle does not help combatants and constantly states that, returned the money, and there is documentary evidence of this, and it does not have any relations with the above-mentioned “Humanitarian volunteers of Novorossiya” and is not aware of their existence. We have not found the traces of this fund. Weird sentence, to put it mildly, isn’t it?

In 6 other sentences the defendants with the motives of support for various institutions in the self-proclaimed republics transferred RUB 10 000, 40 000, 23 300, $1000, $2000, in one other case a bank employee performed the following service: exchanged the worn-out banknotes in the amount of UAH 50 000, received from the separatists, which were subject to withdrawal from circulation, bought rubles and dollars and transferred then.

9 sentences punished the actions directed at import of various goods, property and equipment to the territory uncontrolled by the government (in one case – export from the uncontrolled territory). Thus, in one case the accused created “Donetsk Fuel Company” and arranged the import of oil products from Russia, at the same time paying the duty, the excise duty and the turnover tax. In another case the accused arranged the import of dairy products bought in Kharkiv. He bought 47 heads of “Cream” cheese, paying slightly above UAH 24.5 000, and planned on delivering it. On his way he was detained by the SSU officers. It is not clear why the sale of this food product means the financing of actions directed at forcible change or overthrowing of constitutional order… Three sentences punished the members of the group that provided the procurement of three foreign cars in Germany and their transfer for the needs of three militia officers in the so-called “LPR”. 3 cases punished the attempt to carry radio parts for PAT “Makiivka Mine Automation Plant”; («Макеевский завод шахтной автоматики»); surfactant that is used for gas production, for the so-called “Ministry of Fuel, Energy and Coal Industry of DPR”; two flanges for machines on Luhansk ammo plant. In one case it was planned to produce in Donetsk refractory mixtures for the metallurgical industry and transfer them to the controlled territory via transit through Russia.

The fine was awarded for the creation of financial institution “Luhansk Commercial Center” that provided financial services to the residents of LPR. That sentence looks similar to 7 sentences under Article 258-5, delivered for the similar actions. In general the Articles 258-5 and 110-2 are quite similar: the courts deliver punishments for similar actions under those articles.

Commentary

How correct is it to state about the entrepreneurs who do business on the uncontrolled territories of Donetsk and Luhansk regions, that the payment of taxes in the self-proclaimed republics is a constituent element of a crime under Articles 258-5 and 110-2, since it means financing the terrorism?

There is no need to explain that entrepreneurship is inextricably linked to property, meaning certain material values (machines, equipment, tools, real estate, money etc) that are used for the creation of new goods: the manufacturing of products, performing works and providing services. A person who really worked hard in that area and genuinely became the owner of the property, cannot just leave what he earned to the fate. It is appropriate here to provide the disposition used by the legislator in Art. 13 of the Constitution and Art. 319 of the Civil Code of Ukraine, borrowed from the Constitution of Germany – “property obliges”. It should be taken into account that entrepreneurs are legally and morally responsible for people who work at their enterprises. As is widely known, the entrepreneurship bears a significant part of social stress. The state authorities should understand that it would be a crime to turn the temporarily occupied territories into a dead zone and rejoice that Ukrainians went extinct, and everything that is called property and was created manually, or even by nature, lost its properties and qualities and cannot be restored. It is well known that people who declared the creation of the “republics” established the following on the level of their documents: if the registration is not carried out and the taxes are not paid, the residents of Ukraine will first have their business temporarily administrated, and then will forfeit it.

The need to correct the domestic criminal legislation is also evidenced by Art. 13 of UN International Convention for the Suppression of the Financing of Terrorism (adopted on 09.12.1999, ratified by Ukraine on 12 September 2002): “None of the offences set forth in article 2 shall be regarded, for the purposes of extradition or mutual legal assistance, as a fiscal offence. Accordingly, States Parties may not refuse a request for extradition or for mutual legal assistance on the sole ground that it concerns a fiscal offence”. Thus, a person who really finances terrorism. must on his/her own, without forcing, commit the action in the form of collection, transfer, forwarding or otherwise sending money to the addressee for the organization, preparation and commission of a terrorist act by an individual terrorist, terrorist group or terrorist organization, involvement in a terrorist act, public urging to commission of a terrorist act, creation of a terrorist organization. It should be taken into account that the word terrorism comes from Latin terror – “horror”. In a wide sense the terrorism uses (or threatens to use) violence to achieve political, religious, ideological or other goals. To see what terror is, to feel it personally, it would be appropriate, as an experiment, for a person who uses the relevant norms of the criminal legislation in practice, to cross the line of contact and live for some time on the occupied territory. It would be appropriate to mention the message left for the media by Olexandr Tymofeev who was holding the post of the Minister of Revenue and Duties in the self-proclaimed “DPR” (call sign “Tashkent”, although he retired, the approach remained the same). He admitted that the gathering of taxes on the first stage was carried out with the help of armed divisions and light armored vehicles. Tymofeev also pointed out the inevitability of tax collection and significant fines for non-payment.

Thus the enterprises whose assets are focused on the temporarily occupied territory of Donetsk and Luhansk regions found themselves in the conditions of full legal uncertainty – on one hand, the employees and property of such enterprises are in danger, illegal armed formations may at any time use violence against the employees in case of refusal to cooperate, on the other hand, the Ukrainian government does not take measures directed at clarifying the position of the state concerning the functioning of the enterprises on the uncontrolled territory. It behaves asymmetrically, and in many cases shows even more offensive and defiant attitude than the one shown on uncontrolled territory.

It seems that the law enforcement agencies of the state must take into account the above circumstances and stop the vicious practice of the groundless opening of criminal proceedings under Art. 258-5 and 110-2 of the CC of Ukraine against the innocent citizens. However, we can see, on the contrary, a significant increase in such criminal proceedings. It is apparent that the legislator should urgently radically rework that rule in such a way that the investigation would not have any temptation to abuse the rule.

It is proposed to formulate p.5 of Art. 258-5 of the CC of Ukraine in the following way: A person is not subject to criminal liability for the actions provided for by this Article, if the taxes or other obligatory payments and duties that are not considered a crime according to Article 13 of the International Convention for the Suppression of the Financing of Terrorism adopted by UN on 09.12.1999 were collected from it, from the organization with which that person has labor, official, founding, other professional relations, by the administration of the territories temporarily uncontrolled by Ukrainian government. This provision does not cover the persons engaged in production, testing, sale or other kinds of distribution of weapons and ammunition”.

We would emphasize once again why the payment of taxes or other obligatory payments established by the occupying power should in no case be qualified as a crime:

1. It is not prohibited on the legislative level in Ukraine to engage in business activities in the temporarily occupied territory. Quite a number of industrial enterprises have operated and continue to operate in that part of the country – PAT “Yenakiyevsky Metalurgiyny Zavod” (Yenakiyeve Metallurgical Plant), PRAT «Makiivkoks», PRAT «Yenakiyevsky KHZ», PRAT “Alchevsky Metalurgiyny Zavod” (Alshcvsk Metallurgical Plant), Ukrzaliznytsia units etc.

2. Ukrainian regulations provide for the possibility to transfer the goods through the line of contact both from the territory controlled by Ukrainian government, and from the temporarily occupied territories. The movement of vehicles and cargo is carried out according to the Interim Procedure of control over the movement of persons, vehicles and cargo along the line of contact in Donetsk and Luhansk regions.

3. According to the second paragraph of Article 64 of Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12.08.1949 the occupying power “may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them”.

4. In particular, on the temporarily occupied territory of the self-proclaimed “DPR”, the illegal armed structures adopted (in the original language) «Временное положение о налоговой системе ДНР» (Interim provision on the tax system of DPR), which provides for the obligatory payment of taxes on that territory, as well as «Уголовный кодекс ДНР» (Criminal Code of DPR) that establishes the criminal responsibility for non-payment of taxes.

5. Self-proclaimed “DPR/LPR” have military formations, illegal law-enforcement bodies, unlawful judiciary and the places of detention, which evidences the presence of sufficient measures to enforce the demands of illegal authorities.

But why are the criminal proceedings opened under Articles 258-5 and 110-2? We often heard the following explanation.

Usually the criminal proceedings are not opened against some of the accused, but only according to the fact of the alleged crime. Such proceedings are a sort of fishing net. This net is thrown in a place where with luck it is possible to find something valuable. Sooner or later a naïve and inexperienced middle-class businessman would appear on the contact line (the operatives have made their preliminary conclusion – such businessman must have money). Even better, when some of the houses, buildings, land plots of such businesspersons are on the territory of Ukraine controlled by the government and not on the occupied territory. In such cases it is much easier to seize the property. As soon as the officers of SSU deliver the resolution on the declaration of suspicion, the suspect is detained at once. Later, in two or three days a court sanctions his detention in SIZO before the end of the investigation. And there is no need to explain what happens with a person when he or she is alone in the cell with the investigator and his assistants who exist within SIZO in sufficient numbers. The inventions that help the investigations, created by Ivan the Terrible, were later developed and modified in 1937, nobody has forgotten them and they are passed down from generation to generation. Therefore, after all the trials that await the suspects in SIZO, a plea agreement with the prosecutor is concluded as on the prosecutor’s terms to stop the physical and mental ill-treatment as soon as possible. The document is followed by a significant sum of ransom money which is a secret addition to the agreement. In Ukraine the tax for the release from torture for a businessman varies between USD 150 000 and 250 000. In such simple manner individual SSU employees commit robberies and outright banditry in the workplace.

We could provide many particular examples. Let us examine only one of them.

Investigative Department of the Main Directorate of the Security Service of Ukraine in Kyiv city and Kyiv region opened criminal proceedings in the middle of August 2017 on the grounds of the criminal offence under pt. 3 of Art. 258-5 of the CC of Ukraine. The investigation was entrusted to investigator B.

So what was clarified? It turned out that enterprise Kh. whose management lives on the occupied territory and whose main production is also located there, continues its financial and economic activity, selling the results of its work among the local population and paying what the quasi-authorities beyond the line of contact call “taxes”. If so, the investigator believes, there is financing of the terrorism, and as a result, the criminals should be sentenced under Article 258-5 of the CC of Ukraine. Some other SSU officials qualify the similar actions under Art. 110-2 of the CC of Ukraine.

B. knew what he had to do: he began waiting for the prey. The founders and management of enterprise Kh. did not expect such cunning: they were evacuating their business from the occupied territory of Ukraine (of course, the state was not helping, and stood aside). In difficult conditions the administration was bringing assets from the occupied territory and investing the money in fixed assets, other goods and material values, like responsible thrifty entrepreneurs. For their work they built a polyclinic in Bila Tserkva and the infrastructure objects necessary for work. When possible, they even bought living premises for the employees, so that almost the entire staff could relocate to the new place, feel more or less comfortable and engage in management that benefits everyone, and the state not least.

At last, the time of attack was chosen. On 28 September 2017 B., heading the group of operatives (around fifteen persons) launched a management-approved operation. As usual, they were followed by the witnesses that agree to anything. There were relatives of the entrepreneur in the household, which found temporary shelter from the explosions in Kalynivka. On the night of the tragedy, they left Kalynivka with little children. There was an ill old woman in the summer kitchen. But the robbers from the SSU did not care for the fire survivors, ill people, children and old people. They provided the confused citizens with the search warrant and spread themselves in all rooms. Each of them shamelessly took what he wanted, feeling like a fish in the water. They did not forget to take vodka from the garage. They took a tablet from the dining room. It was bought for the entrepreneur’s son who died tragically in Khartsyzsk. There was a photo of the child in the tablet, another piece of valuable private information that only concerns the family, the memory of the deceased child.

SSU’s hunt did not end at that. On the same day they went to the entrepreneur’s office in Bila Tserkva. Before the start of the search as planned they broke the electronic surveillance system, so that nobody would see what items disappeared, and where. They seized all electronic devices, took the medicines. They stole the medicines and other material values in the total amount of UAH 90 000.

During the questioning the witnesses, as usual, were beaten, intimidated: the whole powerful arsenal of the means of crime detection was used. The people were threatened that if they talk too much a grenade may accidentally fall in their yard, an accidental lucky shot may happen, or another way of punishment may be found. One of the witnesses, T., the commercial director of a Khartsyzsk enterprise, who was bringing the enterprise’s property to Ukraine, was forced to visit Bezler’s torture chambers in the occupied territory. When he compared the torture, he was subjected to in terrorist-occupied Horlivka and in Kyiv, in ITT of the SSU, in Askoldovy lane, his conclusion was unequivocal: it was easier in Horlivka, he was heavily beaten, but the torturers in Kyiv are much more brutal. When the witnesses were released from SIZO, suggestions came from all sorts of intermediaries on how to settle the matter.

The case was settled and those who already relocated had to relocate back to Khartsyzsk.

Conclusions

In two thirds of the cases under Articles 258-5 and 110-2 the accused concluded a plea agreement with the prosecutor. As a result, the legal practice established in this area is too formalistic, devoid of cognitive component, and it has mostly ascertaining nature. The judges often do not examine the proofs of the guilt and only approve the plea agreements and satisfy the petitions of the prosecutors for the release of the accused from criminal responsibility, without resorting to the issue of correctness of qualification, analysis of the composition of crimes, etc. The parties almost never file the appeals. None of the decisions under Article 258-5 studies how exactly the financing in one form or another is manifested in the organization, preparation and commission of a terrorist act by an individual terrorist, a terrorist group or a terrorist organization, or in creation of a terrorist organization – this is taken for granted. The same concerns the decisions under Article 110-2. In particular, it is not studied whether the property or equipment which is delivered to the self-proclaimed republics is designated for the military needs. The fact that the taxes and other obligatory payments are paid is enough – and it already constitutes the event of a crime, although the supply of the goods through the line of contact is not prohibited.

The legal position according to which the payment of the taxes and other obligatory payments on the territories of Donetsk and Luhansk regions uncontrolled by the government is a sign of the crime under Articles 258-5 and 110-2 of the CC of Ukraine contradicts Article 13 UN International Convention for the Suppression of the Financing of Terrorism (ICSFT) and should be changed.

This text in Ukrainian

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