According to the Oil and Gas Association of Ukraine, as of June 1, 1,123 illegal gas stations were operating in Ukraine. These statistics are incomplete and the real figures are much higher, especially considering that some gas stations are closed from time to time, then start working again.
Illegal stations can be divided into two groups. The first is completely illegal "pouring", in which there are no documents for land, equipment or goods. When inspecting regulatory or law enforcement agencies in such gas stations, sometimes there is no owner and it is very difficult to find responsible persons.
The second group is gas stations, which usually have documents for the land, but the land has a purpose, which does not allow to place a gas station. In addition, such gas stations usually do not have permits in the field of ecology, fire safety and labor protection and the like.
How government agencies fight illegal immigrants, and how the latter succeeds - let's talk next.
Violation of safety rules. Search and seizure of property
The most effective way to stop an illegal gas station is to search and seize the fuel along with the equipment. It happens as follows: the investigator registers the criminal proceedings on the grounds that there are no permits at the gas station and safety rules are violated. After that, he receives a court order to conduct a search or inspection.
During these activities, the property of the gas station is sealed, after which the investigator goes to court with a request to seize him. His court (fuel dispensers, tanks, fuel) arrests the work of the gas station stops.
The further fate of such a gas station very often depends on the persistence of its owner.
Active owners of the illegal immigrant go to the appellate court and cancel the arrest. Arguments can be different. For example, the Kropyvnytskyi Court of Appeal noted in one of its decisions that the person whose property was arrested was not a business entity and that the fuel was used for his own needs. Also, according to the court decision, law enforcement officers failed to prove the fact of sale of fuel to third parties.
Stopping the gas station on the administrative claim of the controlling bodies
If the rules of fire safety, labor protection rules are violated at the gas station or there are no permits, the controlling bodies may apply to the court with a claim to suspend the operation of such a station. In practice, Gostruda, firefighters or the Eco-Inspectorate come to check, identify violations of the law, and then apply to the administrative court for the application of response measures by stopping the operation of the entire station or its individual equipment.
But, despite the violations, gas station owners often manage to persuade the court not to stop the operation of the facility.
For example, in the Cherkasy region, Gostruda filed a lawsuit to suspend the operation of the gas tank because the company did not receive a permit to operate it and a permit to perform high-risk work. By its decision, the Cherkasy District Administrative Court denied Gostrud's claim. The court noted that since the company had issued an order prohibiting the operation of this equipment, there were no grounds for stopping it at the time of the case.
Dismantling of gas stations due to violation of landscaping rules
The rules of improvement of many cities stipulate that temporary structures located without the appropriate permit documentation are considered arbitrarily placed and are subject to dismantling. But even if the gas station was stopped by dismantling, then later its work can be restored and continue to work.
For example, in Kyiv, based on the decision of the Department of Urban Development, the Kyiv Rescue Service dismantled the filling station due to the lack of permits. The owner of the station appealed to the District Administrative Court of Kyiv, which ruled that the Department's actions were illegal and ordered the return of liquefied gas and storage tanks. The court, among other things, motivated its decision by the fact that the city council did not approve the procedure for obtaining a binding passport for the placement of AGZP, so the company could not apply to the permitting authority.
After the court's decision, the company filed a lawsuit in the Economic Court to recover the lost profits. In the present case, it also asked the court to apply precautionary measures. The court granted the company's application and forbade the KSCA Department and the Kyiv Rescue Service to dismantle the filling station.
Licensing and new rules of operation
New rules on fuel storage and retail came into force on 1 July. Now gas stations must obtain the appropriate license. At the moment in Art. 164 of the Code of Ukraine on Administrative Offenses provides for liability for the operation of gas stations without a license. This is a fine from 17 to 34 thousand hryvnias and confiscation of fuel, equipment and containers in which it is stored.
In addition, if the gas station does not have shipping documents for fuel, there is a risk of criminal prosecution under Art. 204 of the Criminal Code of Ukraine.
At present, the practice of prosecuting fuel trade without a license has not yet been established. But given the courts' consideration of cases of trade in goods for which a license is required, owners will still be able to find arguments to refute in court the allegations of illegal trade. First of all, this will be due to the shortcomings of fixing offenses by law enforcement agencies.
As a result, on the one hand, government agencies have sufficient mechanisms to influence the operation of illegal gas stations, both in criminal proceedings and through shutdowns of facilities in court. On the other hand, due to the imperfection of the legislation and the mistakes of the controlling and law enforcement bodies, the illegals manage to circumvent the ban and prove their rightness in the courts. And yet there is a high probability that a set of recent innovations - licensing of fuel transactions, as well as monitoring of excise tax and actual balances in the tanks - in the long run minimizes the room for maneuver of fraudsters.
The article is published on: enkorr.com.ua