The court found unlawful the detention of custom cars DTEK coal

Law enforcement bodies of Ukraine are trying to detain the goods which in their opinion moved from the temporarily occupied territories of Ukraine, however, the courts in the absence of evidence cancel such decisions and recognize the illegal actions of law enforcement officers.

So, 25 November 2015 The Odessa appellate administrative court in case No. 815/4596/15 (definition is in the public domain on the website of the unified register of court decisions), found that DTEK TRADING SA (DTEK TRADING SA) has addressed in court with the claim to the customs office Separate of the Odessa customs of the Public fiscal service of Ukraine, the Odessa customs of the Public fiscal service of Ukraine, and asked to acknowledge as illegal the actions of the defendants for detention of railway wagons with goods (cargo anthracite) in the check point "Kuchurgan" customs post "Separate the Odessa customs of the Public fiscal service of Ukraine. But the resolution of the Odessa district administrative court from 09 September 2015, the claim was denied.
The court found that the checkpoint "Kuchurgan" customs post "Separate the Odessa customs of the Public fiscal service of Ukraine as a transit arrived rail cars from the sender, sent from the Russian Federation in the Republic of Moldova. The buyer of the goods is the plaintiff, DTEK TRADING SA.
These wagons with a cargo of anthracite were detained at the customs post "Separate the Odessa customs of the Public fiscal service and as at the date of the filing of the complaint the customs formalities are not completed. The grounds of detention stated in the statement letter of USBU in Odessa region.
According to the letter of Management of security service of Ukraine in Odessa region requested to take immediate measures to prevent the exportation outside the customs territory of Ukraine of cargo coal, shippers and sellers which are specified in the letter registered in the Russian Federation of the enterprise.
The SBU stressed that the pre-trial investigation has established that unidentified persons introduced and implemented a wrongful scheme, the implementation abroad of coal produced in the temporarily occupied territory of Donetsk and Lugansk regions, the direction of the received incomes to the financing of terrorist organizations DND and LNB. The mined coal is transported from the temporarily occupied territories of Donetsk and Luhansk oblasts in the Russian Federation through the uncontrolled border crossing points on the state border of Ukraine with the Russian Federation. In the future, the coal comes from companies registered in the Russian Federation, including OJSC "Obukhovskaya mine office to the address of the companies registered in offshore zones. Profit unidentified persons sent for funding the terrorist organizations "DNR" and "LNR".
However, the court of appeal found that of USBU in Odessa region court not in the 1st nor in the appellate court is not presented with appropriate and acceptable evidence of the adoption of the preliminary investigator, investigator, judge or court measures to ensure criminal proceedings regarding temporary access to objects and documents and /or temporary seizure of property and /or seizure of property stipulated in the article 131 of the code of criminal procedure (as amended, applicable at the time of occurrence of legal relationship) when conducting pre-trial investigation in criminal proceedings, to apprehend and to prevent the exportation outside the customs territory of Ukraine of cargo of coal, the sender and the seller which is JSC "Obukhovskaya mine office," and therefore the corresponding actions of officials of the customs post "Separate the Odessa customs of the Public fiscal service cannot be considered such that meet the requirements of article 40 of the criminal procedure code of Ukraine and article 18 of the Law of Ukraine "About organization-legal bases of fight against organized crime".
In addition, the court of appeal it was established that the investigator of USBU in Odessa region, in coordination with the public Prosecutor's office of Odessa region, in the framework of the criminal proceedings, appealed to the investigating judge of seaside district court. Odessa with a request to grant temporary access and removal, the above shipments of coal and rail cars.
The ruling of the investigating judge of seaside district court of Odessa city (case No. 522/17731/15-production No. 1-KS/522/14282/15) was denied the aforementioned petition of the investigator for the provision of temporary access and removal of property.
In the absence of grounds for further detention of the above shipments of coal, the investigative Department of USBU in Odessa region in the address of the Odessa customs of the SFS of Ukraine issued a letter No. 65/16/1/6136нт from 14.09.2015 year on the extension of the customs procedures in respect of the above cargo, according to the current customs legislation of Ukraine.
Thus, the court of appeal found that given the presumption of legality of decisions of tax payer (including customs duties) established by p. 4.1.4. p. 4.1. article 4 , p. 56.21 article 56 of the TC of Ukraine and the requirements of article 1 and 9 of the law of Ukraine "On cargo transit, article 196,220 TC of Ukraine and the list of exceptional cases when the individual wagons, locomotives, other rolling stock components can be removed from the train for customs control, approved by order of the Ministry of Finance of Ukraine № 602 dated 25.05.2012, there was no legal basis for detained at the checkpoint "Kuchurgan" customs post Odeskoy customs of the State fiscal service of the railway cars with goods (cargo anthracite), owned by DTEK TRADING SA, and the requirements of part 4 of article 558 MCU of Ukraine regarding compliance with the above rules, and should be used only in the case of measures of providing of criminal proceedings with regard to the temporary access to objects and documents and /or temporary seizure of property and /or seizure of property stipulated in the article 131 of the CPC of Ukraine during the pre-trial investigation in criminal proceedings.
As a result, the court of appeal, the resolution of the Odessa district administrative court of September 09, 2015 canceled and recognized illegal actions of the customs office Separate of the Odessa customs of the Public fiscal service of Ukraine, the Odessa customs of the Public fiscal service of Ukraine concerning the detention of railway wagons with goods (cargo anthracite).