Comment on procedural control of economic entities’ activity according to outsourcing and outstaffing services in criminal proceeding by prosecution agencies

Office of Public Prosecution of Kiev executes procedural control of criminal proceeding according to some biggest companies, which specialize on serving outsourcing and outstaffing, namely: “Promotion Outsourcing” llc and “Promotion Staff” llc, on the fact of illegal withdrawal of funds abroad, tax and compulsory payments evasion while serving, with legal confiscation on article 364, part 2 of Criminal Code of Ukraine (abuse of authority and official status, which entailed grievous consequences).

Permission to temporary access to things and documents, which are in the possession of more than 40 biggest budget making enterprises of the country, including the ones with foreign capital, including: “Huawei Ukraine” llc, “Samsung electronics Ukraine company” llc, “Kyivstar” pjsc, “Novaia Pochta” llc, was given by determination of investigative judge of Kiev Dnieprovskiy district court within specific criminal proceeding.

Conclusion of expert research of information-consulting centre was taken as a base for the decision of giving temporary access to things and documents, which, according to Code of Criminal Procedure of Ukraine is not a proof and has no prejudicing value for a court.

At the same time, juridical qualification in borders of criminal proceeding according to the article on abuse of authority and official status, which entailed grievous consequences, illegal withdrawal of funds abroad, tax and compulsory payments evasion, is rather doubtful. Act, according to which a pre-trial investigation was started, could theoretically have signs of a criminal offence, that is related to crimes in the sphere of economic activity under condition of proving that signs of a criminal offence are present in such act.

However, according to our strong convictions, committing of a criminal offence in general is absent under the marked circumstances. The common knowledge is the fact that absence of appropriate juridical regulation of serving outsourcing and outstaffing by economic entities does not mean automatic break of active legislation rules, if it does not contradict directly, as a principle “everything, that is not prohibited, is permitted” works in such case. We will tell in details about it in our further publications.

Connect with the authors:
Illya Kostin, partner at Legal Alliance Company, attorney-at-law, patent and trade mark attorney, kostin@l-a.com.ua

Maryna Mkrtycheva, paralegal at Legal Alliance Company, mkrtycheva@l-a.com.ua