Cases of past years. Wrongful actions of officials regarding the ownership of commercial structures
Good afternoon, dear habrakrady! At your request, we decided to publish an article about one case in which our lawyers took an active part and were able to properly defend the rights of their client - IT companies from Moscow. Events developed from 2003 to 2007. Someone from respected readers will decide that all this is already “overgrown with grass”, however, history, as we know, has the property of cyclicality ...
In the period from 2000 to 2003, in Moscow and the Moscow Region, the number of special operations conducted by law enforcement agencies in relation to commercial structures has become frequent.
It happens as follows. Employees of the operational subdivisions of the BEP (OBEP, UBEP, GUBEP Ministry of Internal Affairs) under the Federal Law "On Operational-Search Activity" under the pretext of conducting investigative actions in relation to one of the partner companies, visit the offices and warehouses of the commercial structure and demand that they submit legal documents legal entity, as well as for inventory items (statutory documents, accounting documents, all contracts, consignment notes, cash documents, certificates according to this, etc.). All these actions, as a rule, are accompanied by inspection of offices and storage facilities by SOBR officers in masks with full combat equipment, as well as by forceful search of employees of a commercial structure.
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After this, a wide seizure of documents is carried out, and storage rooms are sealed, and the free circulation of any material values ​​is prohibited. Often, the operational blocks of computers installed in the workplace are seized, and servers are blocked. Interrogations begin to get an explanation of the employees of the “seized” commercial structure. Further, a written order is issued, signed by the head of the operating unit on the submission within ten days of documents related to the company's activities for further verification of its financial and economic activities. The inspection is carried out for a period of up to 10 days, however, the head of the operational unit can extend this period up to 30 days, and then another 30 days. The goal is reached! Commercial structure is paralyzed!
After one or two days, the management of the commercial structure begins to look for ways out for the management of the operational unit, which carried out the “seizure” of the company, or independent consultants appear who, at the suggestion of the police, are ready to solve the issue “quietly”. The cost of such a decision varies between 10-50% of the cost of inventory items sealed in warehouses, but not less, as a rule, $ 150,000. If the leadership of the commercial structure is intractable, then the second part of the “seizure” begins: the previously sealed goods are taken out for storage in the warehouses of the Russian Federal Property Fund, whose representatives go to the courts of general jurisdiction with statements recognizing the goods to be ownerless.
“Own” judge makes a decision on recognizing the product as ownerless and its subsequent sale with the obligatory condition of transferring funds to the federal budget. It is time for implementation. Goods are sold at prices 10-15 times lower than actual market prices. The difference between the official sale price and the market price is paid to the representatives of the RFBR “black cash”, which is subsequently divided, as a rule, as follows: 30% to police officers, 30% to RFBR employees, 30% to the judge, 10% to the authorized structure of the RFBR, which conducted an assessment of the goods.
Sometimes a prosecutor’s office is also involved in the group. It is necessary in case the merchant tries to appeal the actions of the police officers to the prosecutor’s office. Naturally, given the list of participants in the operation, this will not bring any results.
The author of these lines collided with this scheme while protecting the rights and legitimate interests of one commercial structure, in which a large stock of goods was stolen from a warehouse in Moscow by officers of the Shatura ATS. The initiators of the operation: the head of the Shatura Aksakov ATS, the deputy prosecutor of Shatura for the supervision of law enforcement agencies Dugin, the deputy head of the AECD of the Shatury Makhovsky ATS.
In the early spring of 2003, at the end of the working day, employees of the Economic Crime Department of the Shatur Department of Internal Affairs, headed by police major Makhovsky, appeared at the Moscow warehouse of a commercial structure, who stated that he was an investigator in a criminal case against citizen X under art. 175 and art. 188 of the Criminal Code of the Russian Federation (acquisition or sale of property, obviously obtained by criminal means, and smuggling). Within the framework of this criminal case, investigator Makhovsky broke down the doors of the warehouse, drove several pre-arranged trucks, loaded the goods, and then departed with the trucks in an unknown direction. During the loading of the goods to the warehouse, the lawyers of the commercial structure demanded that Machovsky explain his actions, and also asked to provide a copy of the decision on initiating a criminal case, the decision on withdrawing the goods and attaching him as a material evidence and a separate order of the investigator to conduct a search and seizure.
In Makhovsky, besides the certificate of the police officer, there were no procedural documents, he refused to show anything. The lawyers called the territorial police officers, explained the situation and tried to involve the employees of the district department of internal affairs in defense. However, the police officers who tried to stop the illegal actions of Makhovsky suddenly received an order from the Moscow police department: to leave the warehouse and not to interfere with Makhovsky. Judging by how quickly the police left the warehouse, the team came from a high official. The goods were exported without a list, any documents Makhovsky did not make. Representatives of the commercial structure were also not provided with any documents confirming the legality of Makhovsky’s actions. The whole "operation" took only a few hours.
As it turned out later, shortly before the outbreak of the events described and the seizure of property by merchants, Makhovsky allegedly detained a citizen of N, who was selling goods of unknown origin on the market in Shatura, without any documents. When detained, N testified that he worked in a commercial structure in Moscow and was authorized by her to sell the goods in Shatura. According to the testimony of N, this product is smuggling and all goods in the company's warehouse are also smuggling.
The day after the removal of the company's property from the warehouses, Makhovsky signed a decree on attaching goods as evidence in a criminal case against citizen N.
Five days later, the head of the Shatura Department of Internal Affairs, police colonel Aksakov, concluded an agreement with the RFBR on the storage and sale of items that are physical evidence. Based on the fact that the storage of these goods until the end of the criminal case and during the period of its conduct is difficult, Aksakov instructs the RFBR to assess the exported goods. On the same day, Makhovsky issues a resolution on the sale of goods at designated prices. The Russian Federal Property Fund for one day sells goods worth 20,000,000 rubles for 2,100,000 rubles. One Moscow entrepreneur without a legal entity became a bona fide purchaser.
The lawyers of the injured company appealed to the Main Department of the Main Department of Internal Affairs of the Ministry of Defense, the Prosecutor's Office of the Ministry of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation. Inspections carried out by officers of the Ministry of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation revealed the following: a criminal case was filed by Makhovskiy against citizen N, which does not exist in nature, never issued a passport of citizen N by any body of the Ministry of Internal Affairs of the Russian Federation. Citizen N was never found. The witnesses who were present at the seizure of goods from citizen N also turned out to be dubious persons. One witness since 2000 is in custody, and the actual place of residence of the second is unknown. All the actions of Makhovsky, as it was later found out, were supervised by the aforementioned Dugin (deputy prosecutor of the city of Shatura for the supervision of law enforcement agencies). Meanwhile, the Criminal Procedure Code prohibits a person conducting an operational-search activity from conducting an investigation. This was reflected in the verification materials of the Moscow Region Prosecutor's Office.
One and a half weeks after the date of the withdrawal of inventory items from the warehouse of the commercial structure by the Makhovsky Prosecutor's Office of the Moscow Region decided to cancel the order of the investigator Makhovsky to initiate a criminal case, to cancel the decision on attaching ownership of the commercial structure as material evidence. seized by Makhovskim product.
The actual damage caused to the commercial structure as a result of the described operation amounted to 20,000,000 rubles. The commercial structure went to court with a claim for damages, which, in the case of a positive court decision, would have to be reimbursed to the state, i.e. from the pockets of taxpayers. Two questions remained:
Foreword
In the period from 2000 to 2003, in Moscow and the Moscow Region, the number of special operations conducted by law enforcement agencies in relation to commercial structures has become frequent.
It happens as follows. Employees of the operational subdivisions of the BEP (OBEP, UBEP, GUBEP Ministry of Internal Affairs) under the Federal Law "On Operational-Search Activity" under the pretext of conducting investigative actions in relation to one of the partner companies, visit the offices and warehouses of the commercial structure and demand that they submit legal documents legal entity, as well as for inventory items (statutory documents, accounting documents, all contracts, consignment notes, cash documents, certificates according to this, etc.). All these actions, as a rule, are accompanied by inspection of offices and storage facilities by SOBR officers in masks with full combat equipment, as well as by forceful search of employees of a commercial structure.
')
After this, a wide seizure of documents is carried out, and storage rooms are sealed, and the free circulation of any material values ​​is prohibited. Often, the operational blocks of computers installed in the workplace are seized, and servers are blocked. Interrogations begin to get an explanation of the employees of the “seized” commercial structure. Further, a written order is issued, signed by the head of the operating unit on the submission within ten days of documents related to the company's activities for further verification of its financial and economic activities. The inspection is carried out for a period of up to 10 days, however, the head of the operational unit can extend this period up to 30 days, and then another 30 days. The goal is reached! Commercial structure is paralyzed!
After one or two days, the management of the commercial structure begins to look for ways out for the management of the operational unit, which carried out the “seizure” of the company, or independent consultants appear who, at the suggestion of the police, are ready to solve the issue “quietly”. The cost of such a decision varies between 10-50% of the cost of inventory items sealed in warehouses, but not less, as a rule, $ 150,000. If the leadership of the commercial structure is intractable, then the second part of the “seizure” begins: the previously sealed goods are taken out for storage in the warehouses of the Russian Federal Property Fund, whose representatives go to the courts of general jurisdiction with statements recognizing the goods to be ownerless.
“Own” judge makes a decision on recognizing the product as ownerless and its subsequent sale with the obligatory condition of transferring funds to the federal budget. It is time for implementation. Goods are sold at prices 10-15 times lower than actual market prices. The difference between the official sale price and the market price is paid to the representatives of the RFBR “black cash”, which is subsequently divided, as a rule, as follows: 30% to police officers, 30% to RFBR employees, 30% to the judge, 10% to the authorized structure of the RFBR, which conducted an assessment of the goods.
Sometimes a prosecutor’s office is also involved in the group. It is necessary in case the merchant tries to appeal the actions of the police officers to the prosecutor’s office. Naturally, given the list of participants in the operation, this will not bring any results.
The author of these lines collided with this scheme while protecting the rights and legitimate interests of one commercial structure, in which a large stock of goods was stolen from a warehouse in Moscow by officers of the Shatura ATS. The initiators of the operation: the head of the Shatura Aksakov ATS, the deputy prosecutor of Shatura for the supervision of law enforcement agencies Dugin, the deputy head of the AECD of the Shatury Makhovsky ATS.
Here is how it was
In the early spring of 2003, at the end of the working day, employees of the Economic Crime Department of the Shatur Department of Internal Affairs, headed by police major Makhovsky, appeared at the Moscow warehouse of a commercial structure, who stated that he was an investigator in a criminal case against citizen X under art. 175 and art. 188 of the Criminal Code of the Russian Federation (acquisition or sale of property, obviously obtained by criminal means, and smuggling). Within the framework of this criminal case, investigator Makhovsky broke down the doors of the warehouse, drove several pre-arranged trucks, loaded the goods, and then departed with the trucks in an unknown direction. During the loading of the goods to the warehouse, the lawyers of the commercial structure demanded that Machovsky explain his actions, and also asked to provide a copy of the decision on initiating a criminal case, the decision on withdrawing the goods and attaching him as a material evidence and a separate order of the investigator to conduct a search and seizure.
In Makhovsky, besides the certificate of the police officer, there were no procedural documents, he refused to show anything. The lawyers called the territorial police officers, explained the situation and tried to involve the employees of the district department of internal affairs in defense. However, the police officers who tried to stop the illegal actions of Makhovsky suddenly received an order from the Moscow police department: to leave the warehouse and not to interfere with Makhovsky. Judging by how quickly the police left the warehouse, the team came from a high official. The goods were exported without a list, any documents Makhovsky did not make. Representatives of the commercial structure were also not provided with any documents confirming the legality of Makhovsky’s actions. The whole "operation" took only a few hours.
As it turned out later, shortly before the outbreak of the events described and the seizure of property by merchants, Makhovsky allegedly detained a citizen of N, who was selling goods of unknown origin on the market in Shatura, without any documents. When detained, N testified that he worked in a commercial structure in Moscow and was authorized by her to sell the goods in Shatura. According to the testimony of N, this product is smuggling and all goods in the company's warehouse are also smuggling.
The day after the removal of the company's property from the warehouses, Makhovsky signed a decree on attaching goods as evidence in a criminal case against citizen N.
Five days later, the head of the Shatura Department of Internal Affairs, police colonel Aksakov, concluded an agreement with the RFBR on the storage and sale of items that are physical evidence. Based on the fact that the storage of these goods until the end of the criminal case and during the period of its conduct is difficult, Aksakov instructs the RFBR to assess the exported goods. On the same day, Makhovsky issues a resolution on the sale of goods at designated prices. The Russian Federal Property Fund for one day sells goods worth 20,000,000 rubles for 2,100,000 rubles. One Moscow entrepreneur without a legal entity became a bona fide purchaser.
The lawyers of the injured company appealed to the Main Department of the Main Department of Internal Affairs of the Ministry of Defense, the Prosecutor's Office of the Ministry of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation. Inspections carried out by officers of the Ministry of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation revealed the following: a criminal case was filed by Makhovskiy against citizen N, which does not exist in nature, never issued a passport of citizen N by any body of the Ministry of Internal Affairs of the Russian Federation. Citizen N was never found. The witnesses who were present at the seizure of goods from citizen N also turned out to be dubious persons. One witness since 2000 is in custody, and the actual place of residence of the second is unknown. All the actions of Makhovsky, as it was later found out, were supervised by the aforementioned Dugin (deputy prosecutor of the city of Shatura for the supervision of law enforcement agencies). Meanwhile, the Criminal Procedure Code prohibits a person conducting an operational-search activity from conducting an investigation. This was reflected in the verification materials of the Moscow Region Prosecutor's Office.
One and a half weeks after the date of the withdrawal of inventory items from the warehouse of the commercial structure by the Makhovsky Prosecutor's Office of the Moscow Region decided to cancel the order of the investigator Makhovsky to initiate a criminal case, to cancel the decision on attaching ownership of the commercial structure as material evidence. seized by Makhovskim product.
The actual damage caused to the commercial structure as a result of the described operation amounted to 20,000,000 rubles. The commercial structure went to court with a claim for damages, which, in the case of a positive court decision, would have to be reimbursed to the state, i.e. from the pockets of taxpayers. Two questions remained:
- What decision will the court make?
- Who got the mentioned 20 million rubles (minus 2.1 million rubles)?
- In October 2005, Major Makhovsky V.V. sentenced to 5 years of imprisonment with serving a sentence in the EC of the general regime and deprivation of the right to hold positions in the Ministry of Internal Affairs for 3 years.
- His assistant, Lieutenant Simonov I.V, was sentenced to 3 years of imprisonment with a punishment serving in the General Committee of the Executive Committee and deprivation of the right to hold positions in the Ministry of Internal Affairs for 1 year.
- The Deputy Prosecutor of the Shatura District of the Ministry of Defense Dugin, who “covered up” Makhovsky and in fact organized the “run over” of a commercial structure, was dismissed from the prosecution authorities.
- The fate of the head of the Shatura police department is not known to us.
- In May 2007, the victim of the actions of Makhovsky V.V. the commercial structure received compensation from the state in full of the material damage caused.
- Lawyers involved in this case continue their practice in Moscow and St. Petersburg.
Source: https://habr.com/ru/post/284490/
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