The Gagarinsky Court has separated tax returns from anti-corruption statements of officials. One does not replace the other, according to the court's decision to seize from the former Minister of the Open Government 32.54 billion rubles received from the sale of SIBEKO. The decision was made by Judge Elena Chernysh in September, but its reasoning has been published only now. Tax return does not replace the AP report The Prosecutor General's Office demanded the confiscation of the money. She argued that Abyzov had been hiding from the state since 2012 the ownership of five Cypriot offshores, through which, as a member of the government, he illegally managed the Siberian Energy Company (SIBEKO), and then sold it, violating the ban on entrepreneurial activity and ownership of foreign assets for officials.
Russian legislation, unlike Soviet legislation, does not provide for the confiscation of criminally acquired property. However, it is possible to seize the property, the origin of which the official cannot confirm by the presence of previously declared income. Clause 8 of Article 235 of the Civil Code, which appeared in 2012, allows "the appeal by a court to the income of the Russian Federation of property in respect of which, in accordance with the legislation of the Russian Federation on anti-corruption, evidence of its acquisition for legitimate income is not presented."
Abyzov himself claimed that throughout the entire period of his work as a minister, he filled out and submitted income declarations to the government, but their format, in principle, did not provide for a more detailed description. But on behalf of the LLC Ru-Kom belonging to him, he submitted to the tax service a notification about controlled foreign companies, and it was in it that all data on offshore companies were disclosed. Thus, the state was aware of his property. However, the Gagarinsky court ruled that sending notifications about controlled foreign companies is not related to public service and is not a form of reporting for an employee about his property status provided for by anti-corruption legislation. The court recalled the constitutional principle of separation of powers.
The Federal Tax Service carries out the function of monitoring and overseeing compliance with the legislation on taxes and fees, the decision notes, but its competence does not include conducting anti-corruption checks against taxpayers, assessing the circumstances of their civil service and compliance with relevant prohibitions. Verification of the declarations of persons holding government positions is carried out by the President's Anti-Corruption Office. As for the established form of certificates, it does not limit the list of organizations in which the accountable persons are required to report their participation, they are required to provide full information on all types of participation in commercial organizations and funds, the court's decision emphasizes.
Non-resident error Ilya Shumanov, Deputy Director General of Transparency International, is convinced that the separation of tax and anti-corruption declarations is purely formal. The expert notes: to report that the minister is a controlling person of a foreign company was a very big mistake of Abyzov and his lawyers. He would not have done this, and the likelihood of adverse consequences would be minimal, the expert believes: it is almost impossible to confirm the entire chain of ownership through the existing tools for exchanging information with foreign law enforcement and regulatory authorities, but then the owner himself took it and disclosed it. Formally, the expert recalls, the capital amnesty law guarantees protection from criminal prosecution to persons who disclose information about the control of foreign companies. But these guarantees were superimposed on Abyzov's status as an official, and in the end he still turned out to be a defendant in the criminal case. In fact, the ideal disclosure model is precisely the tax return, Shumanov is convinced, as, for example, in the United States. “It is not clear why it was necessary to come up with an additional parallel system for disclosing information that the tax authorities actually have,” says the expert. "Ownership and Management Tool" The decision also states that the court was guided by the provisions of Chapter 4 of the Civil Code of the Russian Federation, according to which a person's participation in commercial organizations can be realized both through the possession of their shares and shares, and through other forms, including entering the executive and collegial management bodies of companies (supervisory board, congress, conference or other representative body), or through other opportunities to determine the decisions made by such societies. " In Abyzov's case, foreign organizations mediating his relationship with Cypriot companies were not independent, but were used “as a tool for owning and managing the final asset,” the court notes. Such a scheme of ownership of shares was used by Abyzov “to conceal his participation in the defendant organizations and to preserve the actual ability to unaccountably determine their decisions, including on the alienation of property registered on them, not to provide information about his actual property status to the employer and other authorized bodies ". Everything acquired by overwork Another defense argument was that income and property earned by an official before joining the civil service were not subject to seizure: shares in energy companies belonged to Abyzov before he came to the government. However, the court also disagreed with these arguments. The shares themselves were not the subject of claims, the decision says. But anti-corruption legislation forbade Abyzov to engage in entrepreneurial activities, participate in the management of economic entities, use foreign financial instruments and secretly own them, "that is, to perform all those actions by virtue of which he achieved the prohibited result in the form of enrichment of himself and persons under his control." The court refers, among other things, to the data "wiretapping" and other materials that confirm: already as a minister, Abyzov took an active part in the fate of the controlled companies, using his connections in the region and the government to resolve issues. At the same time, it is not the difference between the sale price and the market value at the time of Abyzov's arrival in the civil service that is subject to withdrawal to the state's income, but the entire income from the sale of shares, Judge Chernysh believes, citing the above-mentioned paragraph 8 of Article 235 of the Civil Code. According to the judge's interpretation, the property as a whole is subject to seizure, regardless of the fact that in what part the costs of its acquisition could have been made from legal income. "The right hand does not know what the left is doing." According to Abyzov's lawyer Yulia Taya, such a decision is “pure punishment,” and the accusation of non-compliance with the declaration rules is absurd. Since 2008, Abyzov has notified the Federal Tax Service that he is the ultimate beneficiary of SIBEKO, and the presidential administration has the authority to obtain any data if it conducts an audit. The principle of separation of powers is not limited to the fact that the right hand does not know what the left is doing, the lawyer points out.
But even an inaccurate declaration under the law is not a reason for the seizure of property as state revenue, but only for dismissal, Ty reminds. Confiscation is possible if an increase in assets is proven, but in fact, their value during Abyzov's work for the state was halved. Therefore, the court declared the very fact of their sale to be a corrupt act.
Such a decision, if it resists in higher authorities, is dangerous for absolutely all 870,000 civil servants of the Russian Federation, the lawyer warns: it means the possibility of confiscation of any property that an official acquired before joining the civil service, and then sold.
The lawyer notes: nothing of what is written in the decision was not discussed at the hearing, and it is not surprising: the judge spent 13 minutes on the study of 16 volumes of the case (of which 1250 pages are a transcript of hundreds of hours of wiretapping).
The position set forth in the decision of the Gagarinsky court may become precedent and be further applied in all such cases - in particular, when discrepancies arise between the tax return and information about income and property, lawyer Alexei Melnikov agrees.
He notes that this is a rather rare case when a court decision describes in detail, with reference to evidence, one of the schemes that allow officials to control assets, including abroad. This, of course, is not so much the merit of the court as of the FSB - all the power of the state machine was used against Abyzov, including searches and wiretapping.
However, the expert insists, with all the cautious attitude towards the institution of confiscation of property, which itself contains enormous opportunities for abuse, we have to admit: the state has the right to determine the rules for combating corruption, and the very purpose of this struggle is undoubtedly good.
“We can agree with Abyzov that these rules are unclear. But their common goal and direction were always known, and the attendant risks always lay with the official, the lawyer notes. - Therefore, if there is something good in the Abyzov case, it is just the appearance of clearer rules. It remains only to wish that they apply to everyone without exception. "