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Zhangeldy Suleymanov: Even if Matayev broke something, it could be only the contract, but not the law

12 Октября 2016 Almaty. October 12. KazTAG - Vladimir Radionov. The guilty verdict against head of the National Press Club and  leader of the Union of Journalists of Kazakhstan Seitkazy Mataeva has called sharp criticism not only in the professional journalistic environment, but also among the lawyers. Although the investigation argued that the professional activity of S.Mataeyev  has nothing to do with the case and has purely economic nature (he was accused of fraud and tax evasion), we asked Zhangeldy Suleymanov, lawyer, specialist of economic and tax law, to comment on these aspects.
The lawyer stressed that his opinion is tentative (nobody has seen the full text of the judgment except judge Akbulat Kurmantayev, even the lawyers of S.Matayev), but it is based on information available in the public sources, and the rule of law. It allows him to assume that there is simply no ground to attract S. Matayev to criminal responsibility.

- Zhangeldy, what is illegal in the verdict in your opinion?

-  I know the following about the verdict: S.Matayev was convicted under Art. 190 (fraud) and Art. 245 (tax evasion) of the Criminal Code. Also  there is a phrase in the sentence: to recover 216 million tenge to the state of tax arrears.
With your permission, I'll start with the second part - the alleged tax evasion. And I must say that the recovery of 216 million tenge from S.Matayev - is incorrect. There is a regulatory order of the Supreme Court of Kazakhstan, which says that it is impossible to collect taxes from the citizens or the heads of  organizations, which had not been covered by the organization. It clearly states that the taxes are collected from the company. That is, in this situation it is necessary to collect taxes from the National Press Club. And then if the press club decides whether to recover this amount from the S.Matayev or not. In this part the sentence is incorrect, and my opinion is that any appellate court (City Court of Astana), or the Supreme Court will change it, because this decision is contrary to the position of the Supreme Court, which is a higher authority for the district and for the city courts.
As for the tax, if I'm not mistaken, there was additional charge for personal income tax , this was charged as a crime to S.Matayev as well. The fact is - the PPI is not a tax charged from the organization, it is recovered from the citizens. Here it is necessary to raise the question if the calculated sum is correct, and if the damage was calculated correctly.
If we talk about the corporate income tax (CIT), it also has this procedure. As far as I heard, the national press club paid the taxes. If this was the case, in terms of taxes there could be no claims to S. Matayev. Let me explain why. The Criminal Code has a similar article - evasion of customs duties. So, it clearly states that in the case of cover of the additionally charged payments, an entity shall be exempted from criminal responsibility. The same scheme must be here. Because all such doubts should be interpreted in favor of S.Matayev.
We do not have bloodlust towards those who do not pay taxes. What does the president policy look like? No punishment for economic crimes, if there was a gap in payments. This is the line of the Government and the justice, the indictment unit, and it is reasonable. The legislation is rather complicated in our state.

- S.Matayev said in the court that perhaps he might have failed to cover something as he isn't a taxation expert ...

- It's right. Translating into the legal language, it is called "lack of intent to commit a crime." It may be negligence, but not any kind of negligence is criminal. In any case, this lack of knowledge has to be interpreted in his benefit. If so, it is not a crime at all, it is an administrative offense and it is punished with a fine, say, 30% of the amount of additional taxes, but not with criminal prosecution. And it is very important that at least the charges against Matayev could be dismissed under the Art.245.
There is another thing- we adopted the Law "On amnesty in connection with legalization", the period of validity - until the end of the year. If a person simply puts money on the account and receives a certificate that the funds are legalized, it is not a subject of criminal liability for tax crimes. I'm not talking about this case, but it is possible to legalize underpaid taxes - even without paying 10 percent fee. The Government was aware, the court knew it, if desired, they could relieve S.Matayev from responsibility under Art. 245.

- What can you say about the fraud?

- The accusation of fraud is also perplexed. There is a position of the General Prosecutor's Office, that there cannot be any criminal proceedings between the parties if they have a written agreement: here the principle of civil law relations enshrines. See, now we have 5 million borrowers who cannot cover the credits to the banks. But this does not mean that all the borrowers are fraudsters, they simply can not pay. What now - should each of them be prosecuted? The banks are well aware, and  any law enforcement body will say to them, you have a contract, go and solve the problem in court.
Why am I saying this? The prosecutor's office is progressively moving towards this: if an allegedly affected side goes to police and asks to bring the debtor to criminal responsibility, it is recommended not to open such proceedings, and send the disputants in the civil courts.
As far as I understand, the press club and one state institution had a written contract. Never mind that the second party was representing the state and that it was an agreement on the state order, it does not cease to be in force. Availability of this agreement itself excludes the prosecution. And if the customer of the services had any complaints concerning the product or service of the press-club, there is economic court of Astana for settlement of such disputes, but not the police.
If the customer believes that the supplier improperly fulfilled the contractual obligations, overestimated or underestimated the price, violated the terms, he needs to go to court. The court makes a decision - to recover a certain sum, in this case, from the press club, or orders to correct the failure.
The second thing that is puzzling - fraud as a crime is little applicable to legal entities. Fraud - is a kind of theft, which is committed by means of deception or abuse of trust. A legal entity has no consciousness, conscience, morality, neuropsychiatric emotional processes, it is impossible to cheat it. That is a legal entity cannot be a victim of fraud. In a dispute, if it is possible to deceive a legal entity or not,  the presumption of innocence must be in favour of S.Matayev.
And then, what is deception? Classic deception - it is a fake document. But in our case S.Matayev did not use any forged documents, he used the agreement, which was not disputed.

- But he was accused as he allegedly misappropriated a part of the funds allocated under the order. That is, the customer has placed advertisements in various media at prices lower than those that were assumed in the contract, and used the difference in the personal benefit.

- He had the right. Art. 185 of the Civil Code states that anyone is free to fix the cost of services at his discretion. And the question if S. Matayev violated here any norms of law is quite disputable. In order to declare the violation of  law, it is necessary to bring this provision. I did not see the verdict, but I doubt very much that the court can refer to a regulation, saying that there is a ban on  subcontractors attraction under a lower price. There is nothing like this in the law. Perhaps this rule is in the contract that S.Matayev could not procure services below a certain value. But again,  in this case we are dealing with a breach of contract, but not the law, and these contentious issues must be settled in the court.

- Thanks for the interview!