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Woodworking equipment returned to Chinese investor

29.04.2019

Subject of complaint: The National Police (National Police) and the Prosecutor's Office of Ukraine (Prosecutor's Office)

Complaint in brief: A company with Chinese investments addressed the Council with a complaint about omission of the National Police and the Prosecutor's Office.

The Complainant imported a woodworking equipment and component parts to it that it planned to use in production to Ukraine. There was a dispute with the customs authority regarding possible undervaluation of its value during customs clearance. Unfortunately, this dispute failed to be resolved amicably. The police launched criminal proceedings, and within the framework thereof they seized the property. The Complainant’s lawyer promptly turned to the investigating judge, and he, having assessed the lawyer’s arguments, ordered the police to return the seized property.

And that’s when a surprise was waiting for the importer. The police supported by the Prosecutor's Office, refused to return the property. In the refusal the authorities referred to the judge's “wrong” decision and intended to challenge it in courts of higher instances. They also motivated their refusal by the fact that the seized property had the status of material evidence, therefore, allegedly it couldn’t be returned to the owner. Finally, the last argument from law enforcers was that an expert examination of the property was being carried out. Having received several such refusals, the company asked the Council for assistance.

Actions taken: Despite a strong position of law enforcers at first glance, the Council’s investigator, having looked into the situation, found that none of their arguments were relevant. After all, the decision of the investigating judge on the return of property was enforceable regardless of the fact whether parties to the criminal proceedings agree with it, while the law did not provide for its administrative appeal. The prosecutor was very well aware of it - he appealed to the court of appeals but the court refused to initiate the appeal proceeding. The commodity expert examination law enforcers referred to, had already been completed at the time of the complainant’s appeal to the Council (as the Council’s investigator learned when studying documents in the court register). Yet, the economic expert examination, which continued, did not require physical availability of property. Finally, the fact that property had been recognized as a material evidence was not itself the reason for its being kept by law enforcers, which clearly follows from the provisions of the law and relevant explanations.

Having made sure the Complainant's claims were substantiated, the Council’s representatives sent a letterto the Police and the Prosecutor's Office, where they refuted every point of their argumentation and urged them to return the property. The Council received formal replies to its first letter sent directly to authorities-offenders of the same content as replies earlier received by the Complainant, 

Result achieved: After the Council discussed the Complaint at Expert Group meetings with the National Police of Ukraine and the GPO, and sent a second letter directly to the PGO, the property was returned to the owner for a responsible storage. The case was closed successfully.