HACC refused to close the case of the "king of contraband" Alperin: the defence failed to decriminalize the article on criminal organization

HACC refused to close the case of the "king of contraband" Alperin: the defence failed to decriminalize the article on criminal organization

The High Anti-Corruption Court (HACC) has rejected the motion to close the case against the «king of smuggling» Vadym Alperin and his accomplices.

The court did not grant the lawyers’ request to terminate criminal proceedings No. 52017000000000636 in the part concerning the accusation under Part 1 of Article 255 of the Criminal Code of Ukraine.

In case No. 991/2892/22, six persons are proceeding as accused:

• Vadym Alperin (known as the «king of Odesa smuggling», Odesa businessman);
• Serhiy Tupalskyi (former deputy head of the Kyiv Customs);
• Oleh Sebov;
• Yevheniy Iskold;
• Oleh Shkuratov
• Alina Skomarova (former director of the State Fiscal Service department).

They are charged with creating and participating in a criminal organization which, according to NABU and SAPO, was systematically evading payment of customs duties (Part 3 of Article 212 of the CCU) and abusing power (Part 2 of Article 364 of the CCU) at customs. This involves a large-scale smuggling scheme of goods across the Ukrainian border, which caused losses to the state amounting to tens of millions of hryvnias.

The lawyers (in particular, representatives of Alperin, Tupalskyi, Skomarova, and others) argued for the decriminalization of part of the accusation under Part 1 of Article 255 of the CC, referring to the amendments to the Criminal Code in 2020 (Law No. 671-IX), which entered into force on June 27, 2020.

In particular, the updated version of Article 255 no longer punishes «participation in crimes committed by a criminal organization», and also, according to the defence, changed the criteria for the organization’s purpose (commission of grave or especially grave crimes). The defence believed that the accusation is based on the 2001 edition, which has partially lost force, and demanded to close the case under point 4-1 of Part 1 of Article 284 of the Criminal Procedure Code.

The judge carefully compared the old and new versions of Article 255 of the CC, the explanatory note to the law, and the practice of the HACC Appellate Chamber. Main conclusions:

• The 2020 amendments did not cancel criminal liability for creating a criminal organization and participating in it.
• The legislator only clearly delineated the types of participation (creation/leadership — Part 1, participation — Part 2) and eliminated inaccuracies, but did not eliminate liability for the existence and activities of such an organization.
•  The purpose of the organization (commission of grave and especially grave crimes) remains decisive and is supported by Part 4 of Article 28 of the CCU, which has not undergone changes.
•  The accusations under Articles 212 and 364 of the CC have also not been decriminalized, since the episodes are qualified as systematic actions of an organized group.

Accordingly, the court refused to close the proceedings under Article 255 of the CC regarding all the accused. The consideration of the case on the merits continues in the High Anti-Corruption Court.

This is one of the most high-profile «customs» NABU cases, related to corruption schemes at the Odesa and Kyiv customs in 2015–2017. Previously, the court had already rejected similar motions to close the case, but the appeal returned the case for reconsideration.