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Friday, 29.03.2024, 15:02
'Not guilty' verdict for Tartu Mill left unchanged
As the top court will not discuss the appeal in
cassation of Public Prosecutor Marek Vahing, the decision of Tartu Circuit
Court to uphold a verdict by the first-tier Tartu County Court finding grain
processing company AS Tartu Mill as a legal person and individuals Leonid Dulub
and Priit Saar not guilty of a tax offense entered into force.
According to the statement of charges, Dulub in his capacity
as sourcing manager forwarded to the accountants of the employer invoices for
purchased grain which showed incorrect persons as sellers of the grain.
The accountants, who were not aware of the false nature of
the invoices, showed the invoices in the VAT declarations of Tartu Mill filed
with the tax administrator. As a result, the VAT obligation of Tartu Mill to
the state decreased. However, Tartu Mill did not benefit from this as, under
arrangement by Dulub, the portion of VAT not received was paid out to the
intermediaries who sold grain to Tartu Mill and issued the invoices.
The circuit court agreed with the lower court that Dulub
presented the invoices to the accountants not in order to reduce the VAT
obligation of Tartu Mill but for the purpose of personal gain.
Specifically, the intermediaries paid Dulub without the
knowledge of the managers of Tartu Mill for buying grain from them for Tartu
Mill based on the invoices shown in the statement of charges. Under law,
presenting false data to the tax administrator is a criminal offense only if
done with the aim of reducing the tax obligation.
Since Dulub acted with personal gain, but not reducing the
employer's tax obligation in mind, he did not commit a tax offense. The
prosecutor's office however did nor charge Dulub with accepting of gratuities
or a bribe. Dulub's acquittal on charges of tax offense also necessitated the
acquittal of Tartu Mill and Saar.
The circuit court did not offer a conclusive assessment of
whether the data presented in the VAT returns of Tartu Mill was incorrect and
whether Tartu Mill must compensate the state for the tax. The dispute over this
will continue in the ongoing administrative court proceeding.
The circuit court also explained, based on a recent decision
of the Supreme Court, the attributes of a criminal organization. According to
that, a criminal organization as a whole must have some more superior common
interest and purpose which exceeds that of the commission of a specific
individual crime or crimes.
A criminal organization has to be such that its existence by
itself poses a significant threat to public security.
In said criminal case, Dulub and Saar were accused of
belonging to a criminal organization engaging in the brokerage of grain
and in VAT fraud. The circuit court found that the association that Dulub
and Saar allegedly belonged to was not a criminal organization.
In the form described in the statement of charges,
cooperation between the individuals mentioned in the statement of charges was
not of a nature characteristic of a criminal organization. The alleged criminal
organization was lacking rules and a code of conduct, as well as an established
definitive structure and clear-cut hierarchy.
There is no information suggesting that the individuals
committed acts in the knowledge that they belong to a criminal organization and
are acting in the latter's interests and keeping in mind its goals.
The individuals named in the statement of charges were only
loosely connected between themselves and did not constitute an organization
having an independent will, so to speak, the second-tier court found.
The circuit court also observed that even if it was possible
to ascertain the existence of a criminal organization, it would not be possible
to count Dulub as its member, but only a cooperation partner.
In addition, the college of the circuit court made up of
three judges pointed out that the statement of charges drawn up by the
prosecutor's office contained substantial shortcomings and did not fully meet
the requirements of clarity and accuracy.