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Law Office «PRIKHODKO&PARTNERS» obliged the National Anti-Corruption Bureau of Ukraine to initiate criminal proceedings

The lawyer bureau «PRIKHODKO&PARTNERS» filed a complaint against the actions (inaction) of employees of the National Anti-Corruption Bureau of Ukraine.

On June 12, 2017, the SE Mariupol Commercial Sea Port (hereinafter referred to as the Customer) in the ProZorro electronic procurement system, it was announced the purchase of ID UA-2017-06-12-000622-b for the provision of legal advice and legal representation services (9 services, DK Code 021-2015 (CPV): 79110000-8), the expected value of which was 550 000,00 UAH.

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On July 4, 2017, the Customer announced the decision to determine the winner of June 29, 2017 (hereinafter referred to as the Decision), does not correspond to the principles of objective and unbiased evaluation of tender proposals and prevention of corruption actions and abuses specified in the Law of Ukraine «On Public Procurement».

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The winner was determined OOO «Aktio Lex», the initial and final price offer of which is 74 800,00 UAH. without VAT.

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However, according to paragraph 6.6 of the Decision, the commission notes that: «In accordance with the terms of the documentation published by the Customer, it was determined that: -« the bidder must provide prices for the unit of service indicated in the table ». In general, the subject of procurement was 1 lot, containing 9 services – «the total cost of the proposal consists of the prices for the unit of services, compiled among themselves.»

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According to Clause 9.1 of the Procedure, the Customer considers the participant who provided the lowest price offer by the results of the auction and makes a decision on the compliance of the offer with the requirements specified in the procurement announcement period.

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The auction ended with the following price offers of the participants: «PRIKHODKO&PARTNERS» Law Office (the final price offer is 396 000,00 UAH) LLC «Investment Service Ukraine» (final price offer – 394 000,00 UAH) LLC «Law Firm» Glagus»(the final price offer is UAH 245,000.00) LLC «Aktio Lex» (the final price offer is 74 800,00 UAH.).

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Thus, officials of SE «Mariupol Commercial Sea Port» abusing their official position, clearly understanding the difference between the real cost of providing legal services for this tender and the amount of funds allocated from the state budget of Ukraine, acting by a group of persons in collusion with the Executor, which was determined by the winner and with whom previously there were similar relations, committed the theft of state enterprise funds through their embezzlement, namely the transfer to third parties for satisfaction Niya their vested interests.

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The amount of damage caused is 550 000,00 UAH. (Amount of funds in accordance with the concluded agreement) – 74 800,00 UAH. (The amount of funds was declared by the Contractor at a tender sufficient to perform the scope of work) = 475 200,00 UAH. (The amount of actual damage to the state enterprise).

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Taking into account the above mentioned, in the actions of the officials of SE Mariupol Commercial Sea Port, namely the chairman, deputy and members of the tender committee for electronic procurement ID UA-2017-06-12-000622-b for the provision of legal advice and legal representation services 9 services, Code DC 021-2015 (CPV): 79110000-8) and the official who signed the agreement, signs of a criminal offense provided for in Part 5 of Article 191 of the Criminal Code of Ukraine, namely the embezzlement of someone else’s property by abuse of official status of their official position committed in a particularly large scale and organized group.

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Based on the foregoing, AB «PRIKHODKO&PARTNERS» was sent to the National Anti-Corruption Bureau of Ukraine an application for the commission of a criminal offense provided for by Part 5 of Article 191 of the Criminal Code of Ukraine.

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July 28, 2013 AB «PRIKHODKO&PARTNERS» received a letter from the Head of the Public Relations Department of the NABU Kravchenko Ya.V. for ref. No. 11-006 / 26618, which was denied the opening of criminal proceedings in accordance with Part 5 of Article 191 of the Criminal Code of Ukraine and reported that the issues raised in the Application are not within the competence of NAAB.

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However, according to part 5 of Article 216 of the Code of Criminal Procedure of Ukraine, detectives of the National Anti-Corruption Bureau of Ukraine carry out pre-trial investigation of crimes provided for by Articles 191, 206-2, 209, 210, 211, 354 (in respect of employees of legal entities of public law), 364, 366-1 , 368, 368-2, 369, 369-2, 410 of the Criminal Code of Ukraine and only if there is at least one of the bases indicated in this rule.

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The head of SE «Mariupol Commercial Sea Port» is the head of a large business entity, in the authorized capital of which the share of state or municipal property exceeds 50 percent, and therefore in accordance with cl. 8 p. 216 of the Code of Criminal Procedure of Ukraine, the crime was committed by a person, a pre-trial investigation in respect of which is carried out by the National Academy of Sciences.

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According to information from the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Formations, the founder is the Ministry of Infrastructure of Ukraine, the code of the USREOU of the founder: 37472062, address of the founder: 01135, Kiev, Shevchenkovsky district, Pobedy Ave., house 14, which means 100 percent property belongs to the state.

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This indicates that the pre-trial investigation of this crime falls under the exclusive jurisdiction of the NABU.

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In addition, the letter states that in accordance with clause 14 Part 1 Article 1, Part 3 Article 7, Part 3 Article 8, Part 1 Article 18 of the Law of Ukraine «On Public Procurements», an appeal body for violations legislation in the field of public procurement is the Antimonopoly Committee of Ukraine, which creates a permanent administrative board (board) to review complaints about violations of legislation in the field of public procurement.

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However, with its application for the commission of a criminal offense under article 191, paragraph 5, of the Criminal Code of Ukraine, «PRIKHODKO&PARTNERS» does not contest the tender procurement and its results, but reports the commission of the crime .The appeal of the results of the tender procurement does not in any way affect the fact of the above-mentioned offense.

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We also inform you that a letter from the Head of the Public Relations Department of the NABU Kravchenko Ya.V. for ref. No. 11-006 / 26618 was sent not by a letter of recommendation, but by regular mail, through which it was received only on August 11, 2017. Proceeding from the fact that the deadline for filing a complaint against the decision, action or inaction of the investigator or the prosecutor, stipulated in part 1 of Article 304 of the CPC of Ukraine, was missed not through the fault of the prosecutors, we believe that there are grounds for the resumption of the procedural period on the basis of Part 1 of Art. 117 and p. 3 part 2 of Art. 304 of the Code of Criminal Procedure of Ukraine.

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Pursuant to Article 24 of the Ukrainian CPC, everyone is guaranteed the right to appeal procedural decisions, actions or omissions of the court, investigative judge, prosecutor, investigator in the manner prescribed by this Code. The right to reconsider the verdict, the court’s decision regarding the rights, freedoms or interests of the person, the court of the highest level in the manner prescribed by this Code, is guaranteed, irrespective of whether the person participated in the trial.

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In accordance with clause 1, part 1 of Article 303 of the Code of Criminal Procedure, decisions, actions or omissions of the investigator or prosecutor may be appealed in pre-trial proceedings, in particular, by not filing information about a criminal offense in the Unified Register of Pre-Trial Investigations after receiving an application or communication on criminal offense.

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PR «PRIKHODKO&PARTNERS» disclosed the corruption component of the seizure of public funds and filed a complaint with the Solomensky District Court of Kiev.

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In the court session, the complaint of the lawyers’ bureau «PRIKHODKO&PARTNERS» about entering information into the Unified State Register on the opening of criminal proceedings by authorized officials of NABU was fully satisfied.

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The court ordered the NABU to submit information to the Unified Register of Pre-trial Investigations of Information on Criminal Offenses on the basis of a statement by the lawyer Andrei A. Prikhodko regarding possible illegal actions of members of the GP tender committee, which resulted in violation of the requirements of the Law of Ukraine «On Public Procurements» and initiate pre-trial investigation on the application.

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