Communicated on 26 September 2016
THIRD SECTION
Application no. 52464/15
Anatoliy Anatolyevich AGAPOV
against Russia
lodged on 6 October 2015
STATEMENT OF FACTS
The applicant, Mr Anatoliy Anatolyevich Agapov, is a Russian national who was born in 1967 and lives in the town of Krasnodar. At the relevant time the applicant acted as the managing director of the limited liability company Argo-RusKom (hereafter the Company).
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Tax proceedings against the applicant’s company
In 2012 and in 2013 the tax authority of the Krasnodar Region carried out tax reassessment proceedings in respect of the Company. On an unspecified date, having regard to the findings of the inspection, the tax authority reassessed the Company’s liability to the value-added tax (VAT) by 11,487,367 rubles and ordered the LLC to pay this sum and tax surcharges amounting to 1,148,736 rubles.
The Company appealed against this decision to the Commercial Court of Krasnodar Region. By the appeal decision of 10 February 2015 the court upheld the tax authority’s decision. It is not specified if the Company appealed against the decision of 10 February 2015. It follows from the case file that the Company has been liquidated while the outstanding tax debt has not been paid.
B. Criminal proceedings against the applicant
On an unspecified date criminal proceedings were opened against the applicant into suspected tax fraud regarding the above mentioned events. By the final decision taken on 02 June 2014 an investigator refused to bring criminal proceedings against the applicant. In his decision the investigator pointed out that:
“the tax audit carried out in 2012 and 2013 confirmed that the applicant, as managing director of the company, did not pay VAT of 9.826.851 rubles due” (“по результатам выездной налоговой проверки было установлено уклонение генеральным директором Агаповым А. А. от уплаты НДС в размере 9.826.851”)
The investigator further added that:
“... there are sufficient grounds to suppose that the elements of the crime provided for by the article 199 of Russian Criminal Code [1]are absent...” (“... имеются достаточные данные, указывающие на отсутствие признаков преступления, предусмотренного ч. 1 ст. 199 УК РФ...”)
The investigator concluded that the tax fraud with which the applicant had been charged had become time-barred as the two‑years time limit set out in Article 78 of the Criminal Code had elapsed.
С. Civil proceedings against the applicant
On 04 March 2015 the tax authority brought civil proceedings against the applicant seeking of RUB 14,948,778 in damages allegedly resulting from the non-payment of VAT by the Company managed by the applicant. By the decision taken on 06 April 2015 the Leninskiy district court of the town of Krasnodar upheld the civil complaint brought by the tax administration and ordered to the applicant to pay the seeking sum of compensation. In its decision the court pointed out that:
“the applicant, acting as managing director of the company, committed intentionally unlawful actions in order to perpetrate tax fraud inflicting pecuniary damage on the Russian Federation’s budget; it is confirmed by the final decision of 02 June 2014 to refuse to bring criminal proceedings against the applicant” (“Агапов А. А., являясь руководителем организации, совершая противоправные действия, руководствовался преступным умыслом, направленным на уклонение от уплаты налогов, причинил ущерб бюджету РФ, что повреждается вступившим в законную силу постановлением об отказе в возбуждении уголовного дела от 02.06.2014 года”).
The court added that:
“it cannot agree with the applicant’s arguments that his criminal liability is not proved as the criminal proceedings opened against him have been closed for non exculpatory grounds” (“при этом суд не может согласиться с доводами ответчика о том, что его виновность не доказана, так как уголовное дело в отношении него прекращено не по реабилитирующим обстоятельствам”)
The applicant appealed against the decision of 06 April 2015 pointing out that the wording of the first instance court’s decision had cast doubt on his right to be presumed innocent as he had never been sentenced for tax fraud and the criminal investigation opened against him had been closed by the decision taken on 02 June 2014. In its decision taken on 09 June 2015 the appeal court dismissed the applicant appeal stating that:
“exoneration from criminal liability for non exculpatory grounds (like a prescription) should not preclude the establishment of civil liability to pay compensation arising out of the same facts on the basis of civil proceedings. It follows from the wording of the decision of 02 June 2014 that the applicant evaded payment of the VAT in respect of the fourth quarter of 2010 and the first and the second quarters of 2011” (“освобождение от уголовной ответственности в связи с истечением сроков давности уголовного преследования, то есть по не реабилитирующему основанию, не препятствует возможности взыскания причиненного в результате данного противоправного деяния вреда в порядке гражданского судопроизводства. Из текста постановления от 02.06.2014 следует, что Агапов А. А. уклонился от уплаты НДС за 4-й квартал 2010 г. и 1,2 квартал 2011 г”)
The appeal court stressed that the applicant’s civil liability for the tax fraud committed by the Company was also proved by the tax audit’s findings and tax proceedings opened against the Company.
The applicant lodged two cassation appeals that were rejected on 30 June 2015 by the Krasnodar Regional Court and on 11 November 2015 by the Supreme Court.
COMPLAINT
Relying on Articles 6 § 2 of the Convention, the applicant complained that he had been called guilty of a tax fraud in the civil proceedings brought against him by the tax authority.
QUESTIONS TO THE PARTIES
1. What is the current state of tax proceedings opened against the Company?
2. What is the current state of civil proceedings for damages brought against the applicant? Has the decision of 06 April 2015 been enforced yet?
3. Was Article 6 § 2 respected insofar as the Leninskiy district court described the applicant as a person who “committed intentionally unlawful actions in order to perpetrate tax fraud inflicting pecuniary damage on the Russian Federation’s budget” and the appeal court stated that “it follows from the wording of the decision of 02 June 2014 that the applicant evaded payment of the VAT”?
[1]. Article 199 of Russian Criminal Code "Evasion of Taxes and/or Levies Due from an Organisation".
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