Independent TV channel’s director fears another prosecution may be planned
Mykola Knyazhytsky, Director of the independent TV channel TVi has addressed an open letter to President Yanukovych, Oleksandr Yanukovych and the Head of the State Tax Administration Oleksandr Klymentko.
He explains that a criminal file against him has been initiated by a Tax Administration investigator, and that the Ukrainian government owes his television channel money from VAT they should not have had to pay. “The Prime Minister regularly talks about how the State efficiently returns everybody their VAT. They didn’t return ours. What is more they have initiated a criminal case against me personally for what they owe us.
He goes on to say that even before he learned of the criminal investigation, he was phoned from the clinic where his medical records are held and told that the tax inspectors had asked for his medical card. This, he says, is something they normally do before imprisoning a person so that the person cannot turn to the clinic. There would seem no other reason, yet the offence with which he is charged carries a fine (of almost half a million UAH and confiscation of property, not a term of imprisonment. He believes the arrival of the tax police at the clinic may mean that they’re planning another criminal prosecution which carries a different restraint measure.
“I consider the actions of Oleksandr Klymenko’s subordinates to be unlawful and criminal. With the elections approaching the Ukrainian government wants to block our channel. We will be informing all international organizations defending democracy and freedom of speech, as well as foreign governments. We are grateful to members of the Ukrainian public, journalists and political parties and particular politicians who have supported both me and our television channel.
I demand that the criminal prosecution against me be terminated immediately and an end to the pressure on an independent channel, as well as an apology to myself and our journalists. I would urge you to stop putting pressure on the independent media and abide by legislation and democratic principles.
In order to not be accused of manipulation, he provides the full text of the decision to initiate a criminal investigation and the legal opinion of the channel’s lawyers who are from the urinex Firm. The document can be seen here http://blogs.pravda.com.ua/authors/knyazhytsky/50053be69e41d/
The following is from the lawyers’ opinion which explains the substance of the above document.
On 13 July 2012 the lawyers received the Decision signed by Tax Administration investigator B. Trachuk, to initiate a criminal investigation against Mykola Knyazhytsky under Article 212 § 3 of the Criminal Code. He is accused of tax evasion on a particularly large scale.
The lawyers point out that the investigator has failed to taken into account Article 6 of the Criminal Procedure Code which stipulates that a criminal investigation may not be initiated if there was no crime or if the action contained no elements of a crime.
The Decision contains no justification explaining what the tax evasion consisted of or how it was carried out. Both the tax police themselves, in the act drawn up about their check, and the investigator in the Decision confirm that tax credit was in place. The criminality according to the investigator lies in the fact that the channel has put the credit amount in another slot of the declaration. The lawyers point out that both the investigator and the checking bodies came to this conclusion through flawed interpretation of Article 102 of the Tax Code which prompted them to erroneously apply the norm regarding a time bar for establishing the tax credit. The fact that this was flawed was confirmed by the District Administrative Court in Kyiv in its ruling from 25 June 2012. The court’s position did not, however, deter the tax police.
The lawyers point out that the channel provided all necessary paperwork and the tax police had every opportunity to identify the mistake which they are now citing.
They also demolish, citing among other things a Judgement from the Supreme Court, the claim by the investigator that Knyazhytsky deliberately and unlawfully wrongly filled in part 26 of the tax declaration in order to avoid paying tax.
The opinion ends by pointing out irregularities, including the failure right for 10 days to provide Mykola Khnyazhytsky and his lawyers with a copy of the Decision This should have been done within three days, yet as of 13 July it had still not been given to them, and it proved to be no easy task to obtain it. This is vital now that the period for appealing has been reduced.
The Decision and lawyers’ opinion are presented in full here