A shoppy talk with the deputy business ombudsman of Ukraine about the value of an institution and the main problematic issues.
To what do Ukrainians claim the most? In what occasions does appeal to business ombudsman Council not to help? LDaily conversation with Yaroslav Gregirchak, the deputy business ombudsman, who delicately and professionally classified Ukrainian business problems on components.
LDaily: In what way does Council of the business ombudsman handle most often and how many claims do you satisfy?
Y. Gregirchak: For 16 months of work in Ukraine (the Council began to accept claims on May 20, 2015) we have received more than 1300 complaints from entrepreneurs from all areas of Ukraine. For the time being, more than 600 cases with the direct financial effect which are estimated of more than 6 billion hryvnias have already been closed. Most often business complains on actions of the Public fiscal service of Ukraine and of actions or failures of law enforcement agencies. A number of claims have grown from a quarter in a quarter. For example, in the third quarter this year we have received the 242 record number of addresses for all history of our activities.
Some claims consideration over which we have already begun to work sometimes is ought to be stopped. It is about those cases when complainant took a legal action during our consideration. We terminate our investigation in that case. It is a classical criterion which we apply at a stage of the primary claim studying when it only got to us.
We don’t doubt decisions of the courts at all. We would be very unconstitutional if there was an authority in Ukraine which would be the authority of parallel justice. Also, by the way, we don’t accept in the production the claims which are under consideration in the court at the time of receipt to us or there has been already a judgment on it. Sometimes it occurs that complainants (consciously or unconsciously) don’t open to us such information. As a rule, we all find it, though. Unfortunately, we are forced to spend on it anytime.
If to speak about criteria, then I pay attention that we don’t consider the claim to disputes which have private-law nature. For example, if it is a receivership proceeding in a pure form. Besides, having addressed us, the complainant shall prove that he, at least, tried to communicate independently with state body inherently of a problem. Therefore, it is very important that before to address to Council of the business ombudsman the complainant received feedback from state authority.
We also have one more criterion under which consideration of claims falls. Actually, it is a peculiar term of the limitation period. It is 1 year. The circumstances which constitute a claim essence are such which were a long time ago. However, we quite seldom apply it in real life. For instance, by this criterion, we didn’t take in hand only 3 claims by results of last year.
LDaily: Does definitely unambiguous tendency observe in receipt of claims in Council work ?
Y. Gregirchak: It is difficult to answer unambiguously. It is only possible to claim that the number of claims which we don’t take in hand on results of primary analysis decreases. The business begins to understand better how to work with us. If to compare data for the fourth quarter of 2015 when we have rejected 37% of claims, with the third quarter of 2016 then a part of rejected claims was significantly reduced when we have rejected only 25% (in the 2nd quarter even less — 19%). Respectively, a part of the claims which remained in work has increased. Therefore, the number of claims which we don’t take in hand decreases.
LDaily: What, in your opinion, are most urgent questions for business now?
Y. Gregirchak: For correctly answering this question, probably, it is necessary to be a specialised analytical centre or business association. Usually they analyse the state of affairs and state the positive moments. For example, how many and what were sold, what a number of tenders were won, where we move taking into account statistics. As for our interpretation of these or those relevance questions, we write system reports considering the mandate of our activities which is concentrated on the problem resolution and which negatively characterise the quality of a business environment in the country. As of now we have prepared 8 such reports on it, in particular, to subjects as administration of taxes, abuse of authority from law enforcement agencies, foreign trade activities, corruption factors in a construction, problems in the sphere of the economic competition protection , accession to the power supply and so forth.
As for individual claims, I can confirm that the main is a fiscal subject, and GFS is the unconditional leader in our sad charts
By the way, since the beginning of this year, we have received noticeably fewer claims on the scope of the state registration. The relevant departmental appeal commission is engaged in such statements in case of the Ministry of Justice. It is the authority where similar statements arrive. If such commission wasn’t created, obviously, we would receive similar claims much more. Though, sometimes there is also such cases in which they address both to us and to them.
LDaily: By the way, on registration subjects: could you,as the lawyer,explain even such number of raider captures in Ukraine? What isn’t enough for those who suffers from them?
Y. Gregirchak: Such situation in our country have accumulated for decades. What it does now, the Ministry of Justice is a huge reputable. Though I wasn’t in a team which was engaged in the development of the anti-raider law No. 5067 (it is accepted by VRU on October 6, 2016). I can tell that I saw quite system complex changes in a part of increase in a scope of registration business subjects responsibilities, entering of the obligatory notarial authentication of signatures in the corporate decision (which is the basis for making of registration action), levels of responsibility of private notaries for obviously illegitimate actions, etc.
Raiding is one of the public relations condition manifestation, mentality, political and business cultures that definitely show themselves through a prism of shortcomings of the legislation. Therefore public turbulence finds the manifestation through various phenomena including through raiding. In our country, for example, raiding is one of the transition period problem elements in a social development of the Post-Soviet country.
LDaily: How, in that case, do entities have to protect themselves?
Y. Gregirchak: Protection will be effective only when law enforcement agencies are effective and the judicial branch of the power will work also effectively. If supremacy of law works in the country then such problems just couldn’t be. If it is, it will be with a single nature, but not a system.
LDaily: What do entrepreneurs who address to Council of the business ombudsman with claims expect?
Y. Gregirchak: If it is short, they expect an opportunity to work normally. It would be desirable that business had the less fiscal pressure that they returned TAV which there was normally functioning online an office of the taxpayer. There was an opportunity to communicate with fiscal service online and to obtain live information that tax declarations were registered without problems.They didn’t come with unexpected checks and if there is a resolution of the investigative judge, then those who in it are specified, have come, and to that address which there is specified at that time which is provided there. I speak about obvious things which shall just work definitely.
LDaily: May you give some advice to the Ukrainian entrepreneurs?
Y. Gregirchak: First of all, the best quality control of documents and involvement of professionals to servicing of the business processes, minimization legal, and not only are the risk. Lack of all this often is a prerequisite for those problems which businessmen face the direction of the claim to us. Moreover:
if the problem has already arisen, it is necessary to build correctly the strategy of response to it. It requires the same correct professional resource too.
Though to tell the truth, we see different problems. The small business isn’t always able to afford to hire external legal consultants. Together with the medium business they have constituted 80% of our complainants.
LDaily: What countries have still institutes similar to Council of the business ombudsman in Ukraine?
Y. Gregirchak: Tendency is following: the less developed country, the high probability of the fact that such institute will be there. Places, where traditional mechanisms of the dispute resolution, supremacy of law and courts work, the need for such organisations are less. In the Southern Asia, the countries of the Pacific region have a high probability of the fact that it is possible to find something like an institute of the business ombudsman. As for the CIS countries: it is Georgia and Russia.
LDaily: What you could wish to the foreigner who plans to invest in Ukraine?
Y. Gregirchak: I wish that Ukraine looked a competitive option for investment in “supermarket” of national jurisdictions.