The Moscow City Court equated the purchase of the goods below the market price to theft

On January 18 of 2013, the site of the Moscow City Court published the motivational part of the decision on the complaint by Mikhail Khodorkovsky and Platon Lebedev against the sentence on the second YUKOS case, passed Board back in December of 2012. The Moscow City Court dismissed the defense’s allegations of no corpus delicti. According to the investigation, the YUKOS managers had stolen oil from its subsidiaries. The advocates say that the oil was purchased at a price above the cost, and it is therefore not gratuitous appropriation.

The Moscow City Court, in the motivational part, explained that gratuitousness should be construed as not just no compensation for the received assets, but as no “equivalent” compensation, which is market price.

The verdict says: “The analysis of the price formation mechanism for oil extracted by Samaraneftegaz OJSC, Yuganskneftegaz OJSC and Tomskneft-VNK OJSC, used by the convicts, <…> shows that, as a rule, they lowered the price manifold as compared to the real market prices, <…> and the compensation <…>, which was <…> paid, hardly covered the costs”.

Igor Pastukhov of the Law Firm "YUST" points out that the Supreme Court back in Soviet times explained that theft was replacing the taken item with a less valuable one, but that was when market relations did not exist. Nowadays, such approach carries the risk of large-scale repressions against businessmen.

This looks like a tendency – the accusations in the Oboronservis case too are based on that the property was sold below market prices. Mikhail Gutseriev, owner of Russneft, was in a similar situation: the group’s traders bought the oil from the subsidiary extractors at the cost level and sold to end consumers at the market prices. But M.Gutseriev was not accused of stealing his own oil: the criminal case was initiated for tax cheating and illegal entrepreneurship, and was later closed.

Konstantin Rivkin, former advocate of Platon Lebedev, says that the Moscow City Court’s position is a distorted version of the explanation by the Board of the Supreme Court, which stated in 2008 that the theft with a simultaneous replacement of the stolen with a less valuable item is still a theft. But the advocate points out that there is a resolution by the Constitutional Court, which indicates that the price in a civil law transaction is defined by the agreement of the parties, and that all else is a distortion of the meaning. Roman Terekhin of the “Nalogovik” company is convinced that appropriation of alien property with providing the owner with a less valuable replacement may only be qualified as theft if the culprit knowingly misleads the victim regarding the characteristics, quality or consumer properties of the replacement.

Yana Yakovleva, the leader of “Business-Solidarnost” movement, states that the YUKOS case has always been a precedent from the viewpoint of the law application practice. And if the term “equivalent price” appears, the events will take the road, where policemen will decide on the price, at which the goods should be sold.

The source of the publication is here.