Judgement in the case of Ales Bialiatski by the Court of Pershamaiski District of the city of Minsk

2011 2011-12-27T15:09:08+0300 1970-01-01T03:00:00+0300 en The Human Rights Center “Viasna” The Human Rights Center “Viasna”
The Human Rights Center “Viasna”

JUDGMENT

IN THE NAME OF THE REPUBLIC OF BELARUS

 

On 24 November 2011, the Court of Pershamaiski District of the city of Minsk composed of presiding judge S.V. Bandarenka, with participation of state prosecutor V.I. Saikouski, defense lawyer D.Y. Layeuski, having examined in an open trial on the premises of the Court of Maskouski District of the city of Minsk the criminal case file in relation to:

 

Aliaksandr Viktaravich Bialiatski, born 25 September 1962, native of the town of Viartsila, Sortavala District, the Republic of Karelia, the Russian Federation, citizen of the Republic of Belarus, liable for military service, married, with higher education, unemployed, previously not convicted, registered at: 78A-48 Nezalezhnastsi Avenue, Minsk,

 

            charged under Par. 2 Art. 243 of the Criminal Code,

 

ESTABLISHED:

 

             Defendant A.V. Bialiatski, being an income taxpayer and registered with the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus in the period between 2008 and 16 May 2011, being a tax resident of the Republic of Belarus and knowing for a fact the obligation of paying income tax on an individual person’s profits liable for income taxation, received in the form of monetary resources from sources outside the Republic of Belarus from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, through failing to submit a tax declaration for 2007, and deliberate understating the taxation base and claiming deliberately misleading data in income tax declarations for 2008, 2009 and 2010 submitted to the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus, evaded paying the sums of income tax on the profits received in 2007-2010 from non-residents of the Republic of Belarus in the form of monetary resources totaling at 567,721.09 Euros (2,070,970,610 roubles at the rate of the National Bank of the Republic of Belarus), which resulted in a damage to the state on an especially large scale estimated at 352,274,360 roubles, which is over 2,500 times larger than the amount of the base unit established in the Republic of Belarus as of the time of the offence.

               In particular, he, having received profits from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, in the form of monetary funds transferred to bank account No. ********************** opened in his name at ING Bank Slaski S.A. (The Republic of Poland) that totals 142,621.32 Euros, which equaled 414,444,040 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of transactions, which, according to Subpar. 1.1 Par. 1 Art. 2 of the Law of the Republic of Belarus “On Income Taxation of Individual Persons” of 21 December 1991 (hereinafter called the Law), are liable to income taxation, in violation of Subpar. 1.4 Par. 1 Art. 22 of the Tax Code of the Republic of Belarus (hereinafter called the Code), Par. 2 Art. 22, Subpar. 1.2 Par. 1 Art. 23 of the Law, deliberately, with a view to evade the payment of income tax, failed to submit in due time – before 1 March 2008 – a tax declaration for 2007 to the tax authority, and in violation of Subpar. 1.2 Par. 1, Par. 5 Art. 22, Par. 5 Art. 23 of the Law, failed to pay in due time – before 15 May 2008 – income tax, and evaded thereby the payment of income tax on the profits received from sources outside the Republic of Belarus, through submission of a tax declaration on income tax for 2007 to the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus, which resulted in a damage to the state that equals 119,934,017 roubles.

            He also, acting deliberately, with a view to evade the payment of income tax, having received profits from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, in the form of monetary funds transferred to bank account No. ********************** opened in his name at ING Bank Slaski S.A. (The Republic of Poland) that totals 69,348 Euros, which equaled 231,740,845 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of transactions, which, according to Subpar. 1.1 Par. 1 Art. 2 of the Law, are liable to income taxation, in violation of Subpar. 1.4 Par. 1 Art. 22 of the Code. Par. 2 Art. 22 of the Law, failed to specify the above-mentioned profits in the income tax declaration for 2008 No. 4-3/2278 submitted to the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus on 1 March 2009, and in violation of Subpar. 1.1 Par. 1 Art. 22 of the Code, Par. 5 Art. 22, Par. 5 Art. 23 of the Law, failed to pay in due time – before 17 May 2009 – income tax, evading thereby the payment of income tax through understating the taxation base and specifying in the income tax declaration deliberately misleading data on the profits received from sources outside the Republic of Belarus, which resulted in a damage to the state that totals 63,730,344 roubles.

            He also, acting deliberately, with a view to evade the payment of income tax, having received profits from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, in the form of monetary funds transferred in 2009 to bank account No. ********************** opened in his name at ING Bank Slaski S.A. (The Republic of Poland) that totals 34,569 Euros, which, according to Subpar. 1.1 Par. 1 Art. 2 of the Law, are liable to income taxation, and profits from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, in the form of monetary funds transferred in 2009 to bank account No. ********************** opened in his name at АВ DnB NORD bankas (The Lithuanian Republic) that totals 142,916.97 Euros, which equaled a total of 695,273,700 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of transactions, in violation of Subpar. 1.4 Par. 1 Art. 22 of the Code, failed to specify the above-mentioned profits in income tax declarations for 2009 No. 4-3/997 and No. 4-3/1436 submitted to the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus on 27 February 2010 and 27 April 2010, respectively, and in violation of Subpar. 1.1 Par. 1 Art. 22 of the Code, Par. 5 Art. 22, Par. 5 Art. 23 of the Law, failed to pay in due time – before 17 May 2010 –income tax, evading thereby the payment of income tax through understating the taxation base and specifying in the income tax declaration deliberately misleading data on the profits received from sources outside the Republic of Belarus, which resulted in a damage to the state that totals 82,270,274 roubles.

            He also, acting deliberately, with a view to evade the payment of income tax, having received profits from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, in the form of monetary funds transferred in 2010 to bank account No. ********************** opened in his name at ING Bank Slaski S.A. (The Republic of Poland) that totals 20,650 Euros, and profits from non-residents of the Republic of Belarus, pertaining to the implementation of obligations undertaken as part of agreements attained, in the form of monetary funds transferred in 2010 to bank account No. ********************** opened in his name at АВ DnB NORD bankas (The Lithuanian Republic) that totals 157,615.80 Euros, which equaled a total of 729,512,025 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of transactions, which, according to Subpar. 1.1 Par. 1 Art. 153 of the Code, are liable to income taxation, in violation of Subpar. 1.4 Par. 1 Art. 22, Par. 2 Art. 178, Par. 1 Art. 180 of the Code, failed to specify the above-mentioned profits in income tax declaration for 2010 No. 4-3/950 submitted to the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus on 3 March 2010, and in violation of Subpar. 1.1 Par. 1 Art. 22, Par. 3 Art. 178, Par. 6 Art. 180 of the Code, failed to pay in due time – before 16 May 2011 – income tax, evading thereby the payment of income tax through understating the taxation base and specifying in the income tax declaration deliberately misleading data on the profits received from sources outside the Republic of Belarus, which resulted in a damage to the state that totals 86,339,723 roubles.

 

            Defendant A.V. Bialiatski examined in the court session plead not guilty of the charges brought against him and testified that he had been employed as director of the M. Bahdanovich Museum until 1998. In the summer of 1998 he resigned and has not been employed since then, pursuing creative activity. He is head of the Human Rights Center “Viasna” liquidated by decision of the Supreme Court of the Republic of Belarus of 2003. After its liquidation, the Human Rights Center “Viasna” functioned without registration, in connection with which it opened two accounts at banks in Poland and Lithuania, with a view to receive monetary funds from foreign partners. He was the only manager of the above-mentioned accounts. The monetary funds received to the accounts from foreign organizations were spent on human rights activities; the control of spenditure of the resources was administered by him. He cannot specify the sums of monetary resources transferred to the accounts, as well as the specific purposes the money was spent by him for. In general, the money was spent by him on human rights activities – publishing of books, protecting of victims of political repressions, collecting and disseminating of information on human rights violations both in the Republic of Belarus and in other states, election monitoring and other human rights activities. He refused to comment on the printouts of funds flow on his accounts available in the case file materials, since he does not consider them reliable. He considers the results of the audits carried out in relation to him by the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus as incorrect. He did make purchases, using the money on the accounts, but solely in the part of the monetary funds received by him for his contribution to the publishing of books (approx. 385 Euros). He knows the citizens mentioned in the printouts of the bank accounts in connection with his human rights activities; however, he cannot confirm the transfer of monetary funds to them. The money transferred to the accounts in Lithuania and Poland was exclusively spent on human rights activities, as part of oral or written agreements with foreign partners of the Human Rights Center “Viasna” headed by him. Following the spenditure of the resources, he submitted a report on the implemented activities and the sums of money spent; he did not preserve the copies of the accounting papers. He believes that the sums are not his personal income; therefore, he did not submit data on them to the tax inspection. On the same grounds, he does not admit the lawsuit claims by the Prosecutor’s Office of the city of Minsk.

            Having examined in a court session the evidence collected and presented by the prosecution and the defense, the court finds that the prosecution has refuted A.V. Bialiatski’s arguments on his innocence in reliable, admissible, sufficient and convincing proofs; therefore, it believes that the defendant’s guilt of the charges brought against him has been established.

            Witness T.S. Shamkuts (deputy chair of the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus) examined in the court testified that the inspection had carried out office audits of taxpayer A.V. Bialiatski. She can confirm the accuracy of the results of these audits, as they were carried out with respect to the submitted papers on A.V. Bialiatski’s accounts at banks in foreign states. The monetary funds transferred to A.V. Bialiatski’s accounts are his income, which is liable to taxation. A.V. Bialiatski failed to submit to the inspection any papers confirming the grounds for receipt and further expenditure of these resources. In particular, in case there are agreement-related obligations between the owner of the account, where monetary funds are transferred, and the person who transfers them, on the implementation by the owner of the account of any expenditures and activities in favour of third persons, then the monetary funds shall be considered as income, but shall not be liable to taxation. However, in this case, respective papers should be submitted to the inspection for confirmation – contracts, or any other documentary evidence. A.V. Bialiatski objected as to the merit of the audits, which however was not documentarily confirmed.

            Witness A.A. Sobaleva (chief state tax inspector of the Minsk Pershamaiski District Tax Inspection of the Ministry of Taxation of the Republic of Belarus) examined in the court testified that they, under the instruction of the Tax Inspection, they had checked the correspondence of A.V. Bialiatski’s income and expenses. A declaration for 2007 was requested; later, in 2008, 2009 and 2020, he independently submitted declarations. According to information received from the Tax Inspection of the city of Minsk, it was then established that A.V. Bialiatski had opened an account in a bank in the Lithuanian Republic, where monetary funds from foreign companies were accumulated. However, A.V. Bialiatski did not state these profits in the declarations. As a result of an audit, A.V. Bialiatski’s taxes were recalculated. On the same grounds, an audit concerning A.V. Bialiatski’s bank account in the Republic of Poland was carried out. The audit was carried out by a different inspector. The above-mentioned monetary funds are A.V. Bialiatski’s income, liable to taxation. A.V. Bialiatski failed to submit any documentary evidence of the use of the monetary funds transferred to the bank accounts.

 

            Witness N.I. Pashkouskaya (chair of the payment center directorate of the National Bank of the Republic of Belarus) examined in the court testified that her responsibilities included maintaining control over the functioning of the subscribers’ access point of the SWIFT network, managing international transactions between both individual persons and legal entities. After the examination of the presented copies of the bank accounts opened in the name of A.V. Bialiatski at foreign banks, she explained that the copies of the accounts were authentic bank documents and were subject to comprehensive commentary by the experts of the banks only. The presented copies contain entries and values of the bank accounts, details of funds transfers.

 

            Witness L.V. Chauko (deputy director of the Department for Humanitarian Activities of the Office of the President of the Republic of Belarus) examined in the court testified that the essence of the instrument of registration of foreign grant aid is that the individual receiving foreign transfers shall fill in a notice of familiarization with the provisions of Decree No. 24 of the President of the Republic of Belarus, after which a charity account should be opened within five days, monetary funds should be transferred to it and an application for the registration of the foreign grant aid should be submitted, specifying the purpose of its receipt. In case an individual person or a legal entity has received the monetary funds in the territory of a foreign state and they are expected to be used in the territory of the Republic of Belarus, then it should transport the money to the territory of the Republic of Belarus, deposit it to a bank and apply for registration. According to the above-mentioned Decree, foreign grant aid shall be freed from customs duties and taxes, provided it has been received for the purpose provided by the Decree. Neither defendant A.V. Bialiatski, nor the public association Human Rights Center “Viasna” have applied to the Office of the President for registration of foreign grant aid.

 

            Witnesses B.I. Zvozskau and A.P. Kolchyn examined in the court session testified that they knew defendant A.V. Bialiatski in connection with their human rights activities; however, they did not receive any monetary funds from him.

 

            Witnesses A.Y. Laptsionak, A.P. Paluda, T.I. Reviaka and V.P. Sazonau examined in the court session testified that they knew defendant A.V. Bialiatski in connection with their human rights activities, and had received directly from him money for this kind of activities, the usage of which was reported to the latter. However, in the court session they refused to elaborate as to the time and sums of the monetary funds received, as well as the specific purposes they had been meant for.

 

            Besides, the guilt of A.V. Bialiatski of the charges brought against him is corroborated by the written evidence of the case file materials examined in the court session:

            extracts from funds flow on bank account No. ********************** opened by A.V. Bialiatski at ING Bank Slaski S.A. (The Republic of Poland) and extracts from funds flow on bank account No. ********************** opened by A.V. Bialiatski at АВ DnB NORD bankas (The Lithuanian Republic), according to which various transactions of funds were made using the above-mentioned accounts (vol. 1 c.f.s. 142-158, 243-251);

            taxpayer’s file of individual person A.V. Bialiatski; from the income tax declarations for 2008, 2009 and 2010 available in the file it has been established that A.V. Bialiatski had stated as income the monetary funds received from non-resident of the Republic of Belarus Marcin Rembacz for the implementation of services under a contract, which confirms A.V. Bialiatski’s awareness of his obligation to reflect the profits received from sources outside the Republic of Belarus; it has also been established that defendant A.V. Bialiatski failed to submit an income tax declaration in 2007 (vol. 6 c.f.s. 147-184);

            act of taxpayer’s office audit No. 215 of 16 June 2011 and decision on the act of audit No. 416 of 3 August 2011 (vol. 1 c.f.s. 65-72);

            act of taxpayer’s office audit No. 249 of 15 August 2011 and decision on the act of audit No. 516 of 21 September 2011 (vo2. 1 c.f.s. 15-24);

            decision by the Supreme Court of the Republic of Belarus of 28 October 2003 on the liquidation of the Human Rights Center “Viasna” from the date of the proclamation of the decision (vol. 1 c.f.s. 164-180).

 

            Therefore, it has been established in the court session that on 21 January 2011 the Minsk City and Minsk Regional Office of the Department of Financial Investigations of the Committee of State Control of the Republic of Belarus with a view to check the received investigation data submitted through the Ministry of Justice of the Republic of Belarus requests to the competent banks of the Republic of Poland and the Lithuanian Republic to provide legal assistance on the funds flow in the bank accounts opened in the name of A.V. Bialiatski.

            The information on A.V. Bialiatski’s possession of bank accounts at the above-mentioned foreign states was confirmed, and extracts from the bank accounts on funds flow in the bank accounts opened in the name of A.V. Bialiatski were received from the Ministry of Justice of the Lithuanian Republic on 4 April 2011 and from the Prosecutor General’s Office of the Republic of Poland on 6 July 2011.

            The above-mentioned documents were used during the audits by the tax authorities (act of taxpayer’s office audit No. 215 of 16 June 2011 and decision on it, as well as act of taxpayer’s office audit No. 249 of 15 August 2011 with a respective decision).

            The results of the audits were confirmed in the court session during the court’s examination of extracts of funds flow in the accounts opened in the name of A.V. Bialiatski.

            In particular, in 2007 monetary funds that totaled 142,621.32 Euros, which equaled 414,444,040 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of the transactions, were transferred to bank account No. ********************** at ING Bank Slaski S.A. (The Republic of Poland); however, the defendant failed to submit a tax declaration for 2007 to the tax inspection and failed to pay income tax of 119,934,017 roubles before 16 May 2008.

            In 2008, money in the amount of 69,348 Euros, which equaled 231,740,845 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of the transactions, was transferred to the same bank account; however, A.V. Bialiatski failed to reflect the above-mentioned sum in the submitted declaration and failed to pay income tax of 63,730,344 roubles before 17 May 2009.

            In 2009, money in the amount of 34,569 Euros was transferred to the same bank account, as well as money in the amount of 142,916.97 Euros to bank account No. ********************** at АB DnB NORD bankas (The Lithuanian Republic), which equaled a total of 695,273,700 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of the transactions; however, the defendant failed to reflect the above-mentioned sum in the submitted declaration and failed to pay income tax of 82,270,274 roubles before 17 May 2010.

            In 2010, monetary funds in the amount of 20,650 Euros were transferred to bank account No. ********************** at ING Bank Slaski S.A. (The Republic of Poland), as well as money in the amount of 157,615.08 Euros to bank account No. ********************** at АB DnB NORD bankas (The Lithuanian Republic), which equaled a total of 729,512,025 roubles at the rate of the National Bank of the Republic of Belarus as of the dates of the transactions; however, the defendant failed to reflect the above-mentioned sums in the submitted income declaration and failed to pay income tax of 86,339,723 roubles before 16 May 2011.

            The court considers it an established fact that the specified monetary funds received by defendant A.V. Bialiatski outside the Republic of Belarus are his income, and takes into account that the taxation base includes all profits of a taxpayer received both in monetary and in kind forms.

            Income shall be considered as economic profit either in cash or in kind taken into account in case of a possibility of its evaluation in the amount the profit can be evaluated, and estimated in relation to a specific tax, fee (duty) in accordance with the Special Part of the Tax Code of the Republic of Belarus or acts of the President of the Republic of Belarus (Par. 1 Art. 34 of the Tax Code).

            Meanwhile, individual persons’ income can be subdivided into two groups:

1)      income liable to taxation (Par. 1 Art. 153 of the Tax Code), and

2)      income not liable to taxation (Par. 2 Art. 153 of the Tax Code).

Art. 155 of the Tax Code of the Republic of Belarus provides a list of profits received from sources outside the Republic of Belarus, including fees for the implementation of working and other duties, including money fees and bonuses for specific working (service) conditions, the implementation of work, provision of a service, committing an action (inaction) outside the territory of the Republic of Belarus.

                        Such fees received by payers from foreign organizations that are not engaged in any kinds of activity in the Republic of Belarus, and (or) foreign individual entrepreneurs  shall be considered income received from sources outside the territory of the Republic of Belarus, irrespective of the place where the obligations undertaken by the payers were actually performed.

                        According to Par. 2.19 Art. 153 of the Tax Code of the Republic of Belarus, income received either in cash or in kind by an individual person from another person for the implementation of his instruction for the execution of specific payments in his favour or in favour of third persons for the goods (work, services), or for the transfer of the received funds to third persons and the implementation of obligations, shall not be considered as income liable to taxation.

                        Having analyzed the evidence available in the case file, the court believes that defendant A.V. Bialiatski’s arguments on the receipt of monetary funds from foreign human rights organizations solely for the implementation of their instructions were not corroborated in the court session.

                        In the court, the defendant filed to specify when, in what amount and for what specific purposes the monetary funds transferred to his bank accounts were spent; he also refused to name the persons that administered together with him the spenditure of the money, explaining that he did not preserve accounting papers.

                        Nor were the data specified in the statement by the Norwegian Helsinki Committee adjourned to the case file by motion of the defense, which confirms the fact of transfer by the organization of the sum in the amount of 50,555.97 Euros to account No. ********************** opened in the name of A.V. Bialiatski at АВ DnB NORD bankas in 2009. The statement does not feature any data on the specific purpose of spending the funds; nor does it specify what exact instruction was implemented by A.V. Bialiatski in payments to third persons for the executed work (services).

                        At the same time, the court established with certainty that the monetary funds had been transferred to the above-mentioned ban accounts, the only administrator of which was A.V. Bialiatski, while the latter, having received them as property, was enabled to manage them and spent them by his sole discretion to receive economic benefits.

                        Meanwhile, the court believes that the defendant had intent to evade payment of taxes, as he, knowing for a fact of the received income, failed to reflect it in the income and assets declarations submitted to the Tax Inspection, including by request of the inspectors, which allowed him to evade paying the appropriate taxes.

                        The court also considers as groundless A.V. Bialiatski’s arguments on the inaccuracy of the results of the audits carried out by the inspection.

                        In particular, the procedure of assessing the liability of taxation lacking appropriate documents is provided by Decree No. 124 “On the Enforcement of the Instruction on the Procedure of Organization and Conduct of Audits by Tax Authorities” of the Ministry of Taxation of the Republic of Belarus of 29 December 2003. Under Par. 150 of the Instruction, in case a payer (or other obliged person) does not possess any accounting documents or other documents related to taxation, and (or) in case of the absence of accounting records that enable estimating of taxes, the tax authority has a right to estimate the amount of taxes liable to taxation on the basis of funds flow in the accounts of the payer (other obliged person) at a bank … The mode of estimating the amount of taxes is chosen by the inspector, with respect to the peculiarities of occupation of the payer (other obliged person) under audit, which should be recorded in the act of audit.

                        The audits took into account all the available information on the funds flow in the accounts opened in the name of A.V. Bialiatski at foreign banks during the period under audit, which is confirmed by acts of the audits examined in the court session. The defendant failed to provide any documents on the funds flow in his bank accounts, as well as on the existence of any instructions on their expenditure and the subject of their expenditure from their persons.

                        Thus, the controlling authority exercised its right and chose the mode of estimating of the amount of taxes liable for payment by A.V. Bialiatski on the basis of data on the funds flow in his accounts at foreign banks; the choice of this mode is based on the law; therefore, the court finds it reasonable, and the results of the audits and acts – correct.

                        The court established that monetary funds from the bank accounts opened in the name of A.V. Bialiatski at АВ DnB NORD bankas (The Lithuanian Republic) and ING Bank Slaski S.A.(The Republic of Poland) were transferred to Barys Zvozskau, Dzmitry Salauyou, Andrei Paluda, Alena Laptsionak, Viktar Sazonau, Tatsiana Reviaka, Natallia Pinchuk (the defendant’s wife), and apart from that were used to make payments for purchases in the duty-free shop at the airport of Prague, the Monoprix and YVES ROCHER shops (Paris), which is direct evidence of A.V. Bialiatski’s possibility to manage the monetary funds at his discretion and in to his own advantage.

                        The data on the funds flow in the bank accounts belonging to A.V. Bialiatski were received from competent legal bodies of foreign states in accordance with international agreements, examined and adjourned to the case file in accordance with the provisions of the law for criminal procedures and examined in the court session. Considering this, the court finds them admissible, and in conjunction with other evidence in the present criminal case sufficient to find A.V, Bialiatski guilty of the charges brought against him, while the arguments of their invalidity – inconsistent.

                        The awareness of A.V. Bialiatski of the requirements of the tax legislation on the payment of income tax is also corroborated by the fact that the defendant reflected his income received from foreign national Marcin Rembacz in the declarations for 2008-2010 submitted to the Tax Inspection, and later paid this income tax.

                        Therefore, having checked the evidence collected in the case file, having assessed it as to its relevance, admissibility, and all together in its entirety as to the sufficiency for the settlement of the criminal case, the court believes that the guilt of defendant A.V. Bialiatski of tax evasion through deliberate understatement of the taxation base, evasion from submission of a tax declaration and claiming deliberately misleading data in the tax declarations has been established, which resulted in a damage on an especially large scale, and classifies the actions committed by him under Par. 2 Art. 243 of the Criminal Code.

                        Considering the issue on the measure of punishment, the court takes into account both the character and the level of the social danger of the committed offence, the motives and goals of the offence, the amount of damage caused by the offence, the data that characterize his personality, and believes that the objectives of criminal prosecution can only be achieved in case of sentencing A.V. Bialiatski to a punishment in the form of imprisonment with confiscation of property, without deprivation of right to hold certain posts, and does not find any possibility to assign a more lenient punishment to him, including that provided by the sanction of Par. 2 Art. 243 of the Criminal Code.

 

                        The Prosecutor’s Office of the city of Minsk has lodged a civil lawsuit against defendant A.V. Bialiatski, which is liable for sustainment with respect to the inflation rate as of the date of the judgment.

                        According to Par. 3 Art. 44 of the Criminal Code, Art. 933 of the Civil Code, Art. 376 of the Civil Code, it is necessary to exact from A.V. Bialiatski the sum in the amount of:

                        119,934,017 roubles * 2.4274 (inflation ratio between October 2011 and May 2008) = 291,127,833 roubles, 63,730,344 roubles * 2.1375 (inflation ratio between October 2011 and May 2009) = 136,223,610 roubles, 82,270,274 roubles * 1.9956 (inflation ratio between October 2011 and May 2010) = 164,178,559 roubles, 86,339,723 roubles * 1.5048 (inflation ratio between October 2011 and May 2011) = 129,924,015 roubles, in total 721,454,017 (seven hundred and twenty-one million four hundred and fifty-four thousand and seventeen) roubles.

                        Besides, it is necessary to exact from defendant A.V. Bialiatski the state duty in the amount of 36,072,700 (thirty-six million and seventy-two thousand and seven hundred) roubles.

                        The court finds it possible to assign to A.V. Bialiatski the period for voluntary execution of the sentence in the civil claim at one month since the entry of the judgment into legal force.

                        Under Art. 75 of the Criminal Code of the Republic of Belarus, the period of pre-trial detention shall be considered as part of the term of punishment.

 

                        Under Par. 2 Art. 364 of the Code for Criminal Procedures of the Republic of Belarus, the material evidence in the present case: the extract on the funds flow in bank account No. ********************** opened by A.V. Bialiatski at ING Bank Slaski S.A., the extract on the funds flow in bank account No. ********************** opened by A.V. Bialiatski at АВ DnB NORD bankas, the taxpayer’s file, available in the case file shall be stored in the case file materials.

                        The defendant’s property, including that registered with other persons, attached during the preliminary investigation, mentioned in the acts of the inventory of the property attached and warrants of attachment of property (vol. 2 c.f.s. 29-43, 54-84, 112-121, 134-142) shall be considered as payment on account of the execution of judgment in the civil claim and the confiscation of property.

 

                        Considering the above and guided by Art. 349-352, 356, 358-361, 364-365 of the Code for Criminal Procedures of the Republic of Belarus, the court

 

ADJUDGED:

 

                        Aliaksandr Viktaravich Bialiatski shall be found guilty of tax evasion through evasion from submission of a tax declaration, claiming deliberately misleading data in the tax declarations, which resulted in damage on an especially large scale, and pursuant to Par. 2 Art. 243 of the Criminal Code the court assigns punishment in the form of imprisonment for the period of 4 (four) years and 6 (six) months with confiscation of property without deprivation of right to hold certain posts or pursue certain activity, with the service of sentence in the form of imprisonment in a penal colony of middle security regime.

                        The measure of restraint to A.V. Bialiatski in the form of detention shall be upheld.

                        The period of the execution of judgment shall be estimated since 24 November 2011.

                        The period of the defendant’s detention between 4 August 2011 and 23 November 2011 shall be considered as part of the period of the sentence.

                        To exact from A.V. Bialiatski to the budget of the Republic of Belarus the damage caused by the offence in the amount of 721,454,017 (seven hundred and twenty-one million four hundred and fifty-four thousand and seventeen) roubles and the state duty as forfeiture for the state in the amount of 36,072,700 (thirty-six million and seventy-two thousand and seven hundred) roubles.

            To assign to A.V. Bialiatski the period for voluntary execution of the sentence in the civil claim at one month since the entry of the judgment into legal force.

 

                        The material evidence in the present case: the extract on the funds flow in bank account No. **********************, the extract on the funds flow in bank account No. **********************, the taxpayer’s file, available in the case file shall be stored in the case file materials.

 

                        The defendant’s property, including that registered with other persons, attached during the preliminary investigation, mentioned in the acts of the inventory of the property attached and warrants of attachment of property (vol. 2 c.f.s. 29-43, 54-84, 112-121, 134-142) shall be considered as payment on account of the execution of judgment in the civil claim and the confiscation of property.

 

                        The judgment may be appealed and contested to the Court of Pershamaiski District of the city of Minsk within ten days from the date of its issuance, and by the defendant – within the same period from the date of receipt of the copy of judgment.

 

Presiding judge

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слухаць Радыё рацыя Міжнародная федэрацыя правоў чалавека Беларуская Інтэрнэт-Бібліятэка КАМУНІКАТ Грамадзкі вэб-архіў ВЫТОКІ Антидискриминационный центр АДЦ 'Мемориал' Prava-BY.info Беларускі Праўны Партал Межрегиональная правозащитная группа - Воронеж/Черноземье
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