In October 2018, the Prosecutor General's Office initiated the beginning of the fight against illegal gas stations and has already closed at least 602 refueling. Under the pretext of fighting the "shadows", law enforcement officers also visit the "white" business, causing a lot of unreasonable discomfort. To minimize the negatives from these visits, you need to know a few things.
There are separate grounds for unscheduled inspections - complaints from individuals or legal entities. In this case, the controllers have the right to check only those circumstances that are set out in the appeals. If it is a scheduled inspection, then the owner or operator of the gas station must be included in the plan, which is approved for the year ahead. In practice, in order to procedurally speed up the blocking of gas stations, the inspection bodies of Gostrud, GSChS and the State Ecoinspection work with investigators of the police and the prosecutor's office.
As a rule, cases are instituted under Article 272 (violation of safety rules during the performance of high-risk work) and Article 273 (violation of safety rules at explosive enterprises) of the Criminal Code of Ukraine.
After the registration of the criminal proceedings, the investigator receives a decision authorizing a search or inspection. Then everything happens about the same. Law enforcement officers come alone or together with the controlling bodies to inspect or search the gas station, but in fact the gas station is blocked: documents, cash, fuel are seized, equipment is sealed and workers are interrogated.
After that, investigators apply to the court with requests to seize the seized property and documents. Such applications are considered very quickly and often without the participation of the property owner. In the future, the criminal proceedings are placed in a deep box for months. Operators need to prepare for such visits in advance: monitor inspection plans, train employees and have a package of permits sufficient to start refueling.
The conversation with the investigator or the controller should begin with checking their documents, the availability of which can be found in the Law "On the basic principles of state supervision and control in the sphere of economic activity", and finding out the reasons for the visit. Very often investigators make mistakes in the address or name of the company. This may be grounds for non-admission.
If you came with an inspection, you should record all processes and provide only those documents that are required by the inspector. In the process of inspection or search, on the contrary, it is recommended to submit all available permits relating to the operation of gas stations and equipment. This is due to the fact that in the future the investigator will apply for an arrest and claim that the activities of the gas station pose a threat of death. By adding copies of such documents to the search report, the company deprives the investigator of the opportunity to refer to their absence in court.
If there are objections to the actions of the inspector, they must be recorded and formalized in the relevant act. After the inspection, monitor the website of the district administrative court for appeals from regulatory authorities with a claim to suspend the operation of the gas station. It is also necessary to respond to the instructions of the controllers to eliminate violations.
After the inspection or search, you should also follow the court's website so as not to miss the time of consideration of the investigator's request to seize the seized items. The company's participation in such a court hearing increases the chances of returning the seized property.
A recent example was decision of the Vinnytsia city court of the Vinnytsia region, which on 11.12.2018 refused to arrest the investigator, as the company provided part of the permits required for the operation of the gas station. The court referred to the fact that in the framework of criminal proceedings the fact of the presence of deficiencies and violations may be grounds for closing the gas station, but not for the arrest of all the equipment of the gas station.
If the investigating judge grants the investigator's request for arrest, such a court decision can be appealed.
For example, Poltava Court of Appeal by its decision from 14.01.2019 noted the decision of the court of first instance to seize the fuel dispensers and tanks, believing that such property can not be a tool for committing a crime under Article 272 of the Criminal Code of Ukraine. In addition, the investigator did not specify what investigative actions he needed to carry out with the arrested columns and tanks.
What to do if the object does not have the originals of all permits? It should be understood that their absence in itself is not a ground for criminal prosecution. It is necessary to provide confirmation and explanation as soon as possible that the operation of the gas station is safe and does not pose any threat to human life.
The most important thing in the "collision" of controllers or law enforcement - to act immediately. Appealing all unreasonable actions of the prosecutor or investigator will formally complicate the blocking of gas station activities. As practice shows, units of such raids reach the court with charges. Therefore, unfortunately, often the goal of "fighting illegal immigrants" is the desire of the unclean security forces to make money. Do not be fooled that the case will be resolved quietly. It is necessary to draw the maximum attention to the problem and act - to replace the defense with an attack! After such a reaction, the prosecutor and other law activists will think twice before knocking on your door.
The article is published on: enkorr.com.ua