№1(12)(2013)

What a blessing it is to live and work within a state of law. How great it is when legal dogmas are clear, constant and interpreted in the same way by everyone; when freedom of speech and absence of censorship are not empty phrases but actually working democratic principles; when every citizen can rely on justice and protection, simply because everyone is equal before the law. And how unfortunate that all these things are missing in our country. And it is not even about selective justice and pervasive corruption; these are effects. The cause is likely to be found in our society’s overall culture level. After all, Professor Preobrazhensky said that “ravage is not in the toilets, it is in people’s heads”. And until the decisions are taken by the heads that put personal first and public second, no improvements are to be expected.

The Universal Declaration of Human Rights declares that every person has the right to freedom of opinion and expression. The Constitution of Ukraine prohibits censorship and guarantees the right to freedom of thought and speech and free expression of one's views and beliefs. The Law of Ukraine "On the print media (press)" provides for the right of every citizen to freely and independently seek, receive, record, store, use or distribute any of the open access information through the print media. The Law of Ukraine "On Information" contains the norm that no one can be prosecuted for expressing value judgments. But in practice this can be easily ignored, and the humane and just courts pass judgments contradicting not only these norms, but even plain commonsense. Nothing but “ravage in people’s heads” can explain such glaring manifestations of legal nihilism. Thanks to those who pay no mind as to what is written in the law, the situation in Ukraine reminds Orwell’s “Animal Farm”, where all animals are equal, but some animals are more equal than others.

“Independent AUDITOR” No. 2 March 2012 featured an article “Deception Technology, or How To Become A Member of ACU”, where authors presented their assessment of the latest developments in the audit profession, including large-scale falsifications and fraud accompanying elections to Audit Chamber of Ukraine in 2007 and 2012.

Seven months after the article was published, the Audit Chamber filed in Pechersk district court of Kyiv a lawsuit no less than about refutation of information that does not correspond the reality and discredits the business reputation of the Audit Chamber of Ukraine. The itself lawsuit may be deemed a "masterpiece" of legal thought, as to prepare the statement of claim on 34 pages and 230 pages of annexes one must possess a remarkable zeal. Truly colossal work has been done. Extracts from the Unified State Register of legal entities and individual entrepreneurs, as well as from the State Register of print media were obtained. With the assistance of professional translators, Commission Decision 2008/627/ES and the very first agreement between ACU and the International Federation of Accountants (IFAC) on translation of International Standards on Auditing (ISAs) have been translated into Ukrainian. Two conclusions of experts of the Kyiv Research Institute of Forensic Expertise were obtained. I should add that while ACU has in-house counsel, a lawyer from a large law firm was involved in this work. As we see, ACU did not stint in means when preparing the claim. However, when asked directly the head of the Audit Chamber, why he under the Chamber's allegedly deficit budget spends so much of audit money on litigation with auditors (after all fees collected from auditors and audit firms are the main source of funding the Chamber's), I.I. Nesterenko said that the ACU did not pay and will not pay. Which is, of course, a lie. But who knows, maybe the Chamber has paid off all persons involved in protecting the ephemeral "business reputation of ACU" with auditor's certificates.

The ridiculousness and absurdity of the lawsuit stem from the fact that existing legislation of Ukraine does not contain a clear definition of "business reputation of a legal entity", because it pertains to moral and ethical categories. Interpretations of this concept can be found only in a decision of the Plenum of the Supreme Court of Ukraine, laws "On banks and banking activity", "On Financial Services and State Regulation of Financial Services" and ... in the decision of the Audit Chamber of Ukraine itself, which approves the order of certification of bank auditors. At the same, there is no common opinion on whether it is possible to speak about the business reputation of a legal entity not engaged in entrepreneurial activities. Disseminated information, to be considered discrediting business reputation, should be directly or indirectly related to entity's activities or have negative consequences for these activities. Otherwise, it is not clear what exactly is the harm caused to business reputation if it is impossible to estimate the actual damage or loss of profits. That is why in a number of countries, including our closest neighbors, Russia and Belarus, the protection business reputation a legal entity is only possible if its infringement affects the course of business. The courts reject the claims from organizations that are not involved in the business activities. This makes sense: you do not get profit - there can be no harm in the form of damage or loss of profits. ACU, in accordance with the Law of Ukraine "On Auditing", is a non-profit organization. There are no customers to speak of, same as profits or loss thereof. And speaking of moral damages in the form of emotional distress or physical pain, when it comes to a legal entity, is simply ludicrous.

But even if we try and imagine the opposite: would those wishing to become certified auditors stop applying to the ACU if there is nowhere else to apply to? Would audit firms stop paying to be included in the register, or would auditors give up annual mandatory paid advanced training, after reading an article? Or, maybe, auditors would not buy software to submit mandatory reporting from a company owned by the family of the ACU's functionary? What damage was done to the Audit Chamber’s business reputation, after all? Unfortunately, the answer cannot be given neither by the Chamber, nor by the judge so touched by the Audit Chamber’s grievances that he passed an unlawful decision. It is difficult to think of another way to explain lack of any evidence of real or potential damage to the ACU’s business reputation in the plaintiff's claim as well as in the court decision.

In addition to the above, it is worth noting that the ACU is a collegial body composed of representatives of ten state agencies and ten auditors, elected at the auditors' congress. The article, which has become the subject of litigation, dwelt on election fraud in Audit Chamber committed by the organizers of the congress - specific people, auditors, who through lies and manipulation repeatedly seized control of the ACU. The lawsuit on protection of business reputation of a collegial body could indicate not only delicate emotional state of "popularly elected" impostors from the Audit Chamber, but also their banal desire for censorship. ACU people do not like that their actions are being criticized and evaluated negatively. So they resort to delusional claims and try hiding behind "business reputation", saying they did not falsify elections to the ACU, depriving auditors of their vote.

Moreover, the figures from the Audit Chamber are already almost gurus in matters of reputation, because they've been quite successful in this regard. Thus, motivating their decision for harm suffered to the reputation of an entire profession, the disciplinary commission of ACU, including almost all of the organizers of the Congress falsified, passed a decision on the application of penalties for auditors who dared to resist unceremonious violations. For this purpose they even have overwritten the Regulations on Disciplinary Commission of the Audit Chamber, to remove the rule that the disciplinary penalties are imposed on the basis of decisions containing substantiated conclusion and reasoned proposals on this issue. Also they changed the procedure for holding meetings: now it suffices to have three members of the Disciplinary Committee to take action. This reminds "NKVD troika" and "execution without trial". If you're just a objectionable to the omnipotent members of the ACU, you criticize or give a negative assessment of their decisions and actions - you're sure to damage someone's reputation, either of the Audit Chamber, or the entire profession. And ACU certainly seeks to punish responsible for this outrage in all possible ways. And if there is no pretext for punishment, it just will create out of nothing. So, disciplinary proceedings were initiated on the basis of statements written as a blueprint and containing identical demands. This investigation moved to courts, and Audit Chamber even won disputes in the first instance. Of course, "ACU did not pay and will not pay." But one public and bright member of the ACU, who organized before the congress of auditors unlawful rating nomination of delegates by the list, has said that he will bear the expenses of the courts of the Audit Chamber. Apparently, this strategist in his own way understands the meaning of external relations and Information Support of audit, and so pays for adoption of convenient decisions from his own pocket, otherwise it is difficult to assess this statement. Maybe that's why he wants to lay a tribute upon all Ukrainian Auditors as a percentage of revenue - litigations with unruly auditors today are expensive.

Let us return to the lawsuit for protection of business reputation of the ACU. In addition to the author, the Audit Chamber brought claims against the publishing house of the journal "Independent Auditor" and against the audit firm that owns the journal’s website.

The plaintiff asked the court to declare untrue and misleading certain phrases from the article, and oblige to publish refutation of this information in the journal and on the website, as well as to remove the entire article (!) from the site. In support of its rightness the ACU has supplemented the claim with tons of documents that have no relation to the content of the publication. Apparently, to add volume and weight.

In general, it is very difficult to assess the ACU's outburst of protection of their "reputation." After all, the object of dispute is missing due to the fact that the entire article is author's opinion, as is stated in the text. The opinion cannot be reliable or unreliable. Opinions belong to the area of value judgments that are an expression of subjective views and cannot be verified for their conformity to reality. Therefore opinions are not subject to proof of their veracity and refutation. It is remarkable that evidence of this even was in the conclusion of the expert of psychological and linguistic investigation conducted by experts of the Kyiv Research Institute of Forensic Expertise at the request of of the ACU's lawyer. Experts at KNIISE three times noted in their report that the article is in essence evaluative judgments and critical remarks.

Another study conducted at the request of the defendant by the center of linguistic research in Ukraine, Institute of Linguistics of A.A. Potebnia at the National Academy of Sciences of Ukraine, also confirmed that the author's ideas expressed in the article are his value judgments within the meaning of Art. 30 of the Law of Ukraine "On Information". Linguistic analysis of the publication was carried by the deputy director of the Institute of Linguistics of A.A. Potebnia, Doctor of Philology, professor Britsyn V.M., who has vast research experience in the field of Russian linguistics since 1973. The linguist has come to the conclusion that "stated in lawsuit selective parts of the article by Klimov A.V. should not be considered separately from the full text of A. Klimov's article, not only because these parts are components of the text but also because full understanding thereof is possible only against the background of the entire text".

Representative of the ACU at the trial made the statement that the article does not contain modal words. Modals are words and phrases that reflect the attitude and subjective evaluation of the author of his remarks from the point of view of the reported relation to objective reality. However, the article contains literally in each paragraph modal words and expressions such as "probably", "likely", "certainly", "really", "true", "i.e.", "unlikely", "apparently", "unfortunately", "except that", and so on. But everyone sees what they want to see. And if you wish to mislead the court, you may as well fail to see modal words.

It should be noted that the ACU managed to formulate their demands only at the third attempt. Contained in the original complaint claims reduced twice before the last court hearing in the case - first in terms of volume, and then by the number of points. And as the ACU had more than enough time to prepare the claim, this fact can only be explained by the need to harmonize the wording for adoption the decision desired for the Chamber. In the end, the judge did not take into account neither the examination of KNIISE provided by the ACU, nor examination of the Institute of Linguistics. Apparently, there were other compelling reasons that guided the judge that we can only guess of. It does not matter that the stack of waste paper submitted to the court by the lawyer of the ACU together with the statement of claim, not only did not contain evidence of the far-fetched claims, but also directly contradicted them, confirming the author's opinion stated in the article.

Which exactly portions of the text of the article, taken out of context, the Audit Chamber has considered damaging to its business reputation? To demonstrate the creative approach of the ACU, the further quotes from the article "Technology of deception, or How to become a member of the ACU» are shown in italics, and the final claims are underlined.

1. Then the people who were not delegates to the congress "accidentally" got in the room. They were members of large audit firms of Kyiv, some of them at the time were not even certified auditors.

It was about the 2007 congress of auditors. To prove that everyone in the room were certified auditors, the ACU provided copies of the lists of participants of the congress. But no lists can be evidence that there weren't other people in the room. No one claimed that the lists were formed not from of auditors or that at registration the documents were not checked. After the start of the congress in mysterious ways young people who were waiting in the lobby before that, got into the hall. In 2007, the organizers of the Congress have not thought to put armed guards at the entrance. They have come to this only five years later, apparently for fear that somebody would take advantage of their little ruse.

2. The Chamber periodically increased the cost of certification of auditors, inclusion in the Register of auditors and audit firms, mandatory training of auditors. The ACU has consistently raised the price of the mandatory application of International Standards on Auditing, continuing to sell books through the associated commercial structure and fully restricting free access to the electronic version of the document.

The ACU in the lawsuit did not even try to deny the fact of increasing the value of their services or the International Standards on Auditing. Apparently, the Chamber's "business reputation" is harmed even by the mere fact that the ACU itself did not post an electronic version of the standards in free access. At the same time, the International Federation of Accountants had information that the standards are available on the website of the Audit Chamber. Two days before the convention of auditors in 2012 the situation has changed the organizers of the congress had to take care of auditors before the election. And now ISAs were made available, but only free access it is difficult to call this. The document can neither be printed nor copy part of the text, it can only be read from the monitor. And nobody canceled purchase of books.

3. In 2010, the Chamber went even further and introduced for auditors "free" reporting for which they had to software buy from another commercial entity, owned by the family of one of the functionaries of the of the ACU.

In its lawsuit, the Audit Chamber refutes "the author's assertion that the of the ACU obliges to buy software for submission of mandatory reporting." But this statement was not in the article, it was another lie. No one was forcing nobody. The ACU does not engage in racketeering. You just need to buy, otherwise you will be punished. So everybody pays voluntarily. In support of their own righteousness the ACU has supplemented three information letters about postponing reporting dates, each of which contains a notice of penalty by the Audit Chamber and the software developer’s contact details.

4. The IFAC seeks to ensure widespread availability of its standards and does not limit the free distribution of electronic versions of documents. All years the ACU has received permission to translate the standards and at this "accidentally" forgot to post them on its website. But at the same time it never forgot to inform the auditors each year that they needed to buy a new book of standards for whose non-compliance the ACU will severely punish.

As proof that the ACU all the years never forgot to publish audit standards on its website, the court was served printout from the Chamber's website of 13.10.2012. Of course, one can post encoded audit standards on the website 28.02.2012 and say that they have always been there. And that's not even a lie. This is a blatant lie.

5. The European Union has recognized that audit in regulatory body in our country does not comply with European Commission's Decision 2008/627/ES and excluded Ukraine from the list of countries whose auditors’ work is recognized in the European Union.

It is not clear what the ACU was trying to prove by filing to the court translated into Ukrainian language Commission Decision 2008/627/ES of 29.07.2008. In fact, the transition period for Ukraine was not extended by the Eurocommission's Decision 2011/30/EU of 19.01.2011, as was stated in the article with reference to the text of the decision on the European Commission's website. Here, of course, we can agree that the above decisions are a great blow to the reputation not only of the Audit Chamber, but the whole country in the eyes of the world. And the people who volunteered to regulate the audit, continue to argue that the European Commission's Decision 2008/627/ES "has not a single word of exclusion of Ukraine from the list of countries whose auditors work is recognized in the EU." Who are they trying to fool?

6. Often, however, members of the ACU from the state are people who are not even full-time employees of these bodies. Yes, it is possible, because the law does not specify exactly what the officials in the House should do and which the interests of the state defend. Therefore staff members of state bodies often do not have a strong interest in the work of ACU and allow themselves not to take part in its work and not to attend sessions of the Chamber.

To refute this, the plaintiff stated that "the representatives of government agencies attended the vast majority of meetings ACU». They also submitted two certificates of attendance of meetings by representatives of state bodies at the ACU. This cynical lie may be even arranged in a table.

It is difficult to comment upon. It turns out that some members of the state bodies "attended the vast majority of meetings" and at the same did not attend a single meeting. The head of the ACU has a strange understanding of "the vast majority", akin to the average temperature in the hospital. As you say, Ivan Ivanovich, we shall assume that members of the state bodies do not miss ACU meetings.

7. It is worth recalling that the register of certificates issued is ACU’s internal classified information. And how did the Chamber distribute auditors across regions: by registration of a place of residence, the place of audit activities or simply tossing a coin - remains a mystery. But some auditors were therefore simply not admitted to the regional assemblies, and, accordingly, they were denied participation in the congress of auditors.

8. By calculation algorithm known only to the Audit Chamber alone it was established that from Kyiv to congress Ukrainian Auditors 136 delegates should participate.

Specifying its claims, the ACU abandoned initially reported claims that the register of issued certificates is internal non-public information. Chamber's Lawyer asserted that the auditors simply did not read or understand what is written in the convening and holding of Congress of auditors. And it states that "the meeting is open to all certified auditors, registered, according to the ACU's data, in the relevant region." And the auditors can only guess as to what is contained in the "ACU's data", no matter how well they may have read or understood.

9. On the day of the Kyiv meeting organizers announced rating (!) nomination of delegates. That is, people, most of whom no one has seen or knows got to the top of the list the general of candidates for congress delegates because they were put forward by several audit firms on ACU’s request, including firms owned by members of the ACU. Needless to say, no rating nomination is provided for by any legislative act.

In confirmation of damaging its business reputation, in the lawsuit the Audit Chamber argues that "none of the ACU regulatory documents mentions rating voting, and so it is not at all clear what the author of the article in question meant." This is exactly what he meant. Not only ACU documents, but in general no legal act mentions rating nominees to the congress delegates. And this is considered as one of the major falsifications by the organizers of the Congress of auditors.

10. But the organizers of the Congress decided to play it all in their own way. Common list of candidates was divided into three parts: the list by the ACU, the list of those who put forward their candidacy before the meeting, and the list of those who have expressed a desire to be a member of Congress of at the meeting. As befits the electoral process, a vote was taken. Which means, formally they created the appearance of election which actually did not take place. Why didn’t it? Because the organizers have put to the vote only one list – theirs. This happened "by accident". Other two lists were not even put to a vote. As a result, most of the auditors of the capital could not take part in the congress of auditors only because the organizers of the congress decided so.

In confirmation of the lawfulness of their actions ACU presented extract from the minutes of the Kyiv meeting of auditors, completed and signed by the organizers of the congress. This extract contains only the list of "right auditors" and the information that they were elected by the congress delegates. The document, of course, leaves out that the tellers have not signed the protocol, or auditors' mass protests against electoral fraud, or the heated scandal, provoked by the organizers of the congress. Auditors’ meeting has passed honestly, calmly and democratically. It is even difficult to find an epithet for such lies.

11. But this was not enough for the organizers of the congress. Looking ahead, we can say that the list of delegates from Kyiv, posted later on the website Chamber's, differed from the one that organizers fabricated at the Kyiv regional meeting. Colleagues from the ACU have gone on to change the list of after the meeting. Evidently, "by accident" not all of the nececssary people were included in it. Question is: why do we have to hold regional meetings at all? Why do we need Congress of Ukrainian Auditors? People could just gather in a small circle, put on the name plates names of employees of their companies and hold a get-together. Why bother auditors across the country on such trifles as the future of the profession?..

manipulations organizers' congress with lists. auditors actively discussed On social networks And the ACU eventually whatsoever. removed from the lists of his official website The site, before its full reconstruction, showed a message stating that the published lists were not correct. Congress organizers themselves got conofused in the "ACU data".

12. Public organizations of accountants and auditors, whose leaders participated in the meeting and witnessed the atrocities of the Congress organizing committee, spoke against the gross violations of auditors’ rights. The scandal broke out and eventually grew into litigation. But Members of the Audit Chamber were not shy to react and resorted to personal prosecution of colleagues. Aganist those auditors who most actively expressed their disagreement with the violations, disciplinary procedure was instituted. This is to remind  that ACU is not a regulator, yet it can easily punish and thrown out of the profession. Moreover, the Chamber fell to petty propagation through its official website of anonymous defamatory materials written to tarnish the impeccable reputation of heads of public organizations respected in Ukraine, which, in turn, bring together several thousand professionals in accounting and audit.

The persecution of auditors through disciplinary proceedings was mentioned above. As to spreading anonymous defamatory material, the ACU just informed everyone that is not related to publications, and at the same posted on its official website a link to one of the sites with these publications. This is equivalent could be said that ACU does not apply, for example, child pornography and put on the official website Chamber's appropriate materials for all to see, what exactly is irrelevant the Audit Chamber.

But everything gets clear when we find out that ACU’s official website is located on the server with an IP 193.239.255.166. The same server hosts one of the websites that has posted untruthful and offensive materials, as well as the websites of companies belonging to the head of ACU Commission for External Relations and Information Management of Audit A.V. Gachkovsky, who is in charge of maintaining the Chamber’s website. Certainly, that’s just another “accidental” coincidence that ACU has nothing to do with.

Interestingly, one of the companies owned by esteemed Aleksey Vladimirovich even provides reputation management services. Experience gained by members of ACU fighting with the auditors and independent press, won't be lost on them.

13. Media representatives were not admitted into the congress room. For this purpose a week before the Congress the ACU adopted a corresponding accreditation procedure that required media representatives to provide information sufficient to attend the session of the Parliament.

The same issue of the "Independent Auditor" that features the article that irked of the Congress fraudsters, published information on banning the journalists of this periodical from the Congress, alongside comments by the Congress participants that witnessed this incident.

14. Despite numerous requests from congress participants, some of the auditors, who ran for the Chamber, were not admitted into the room. People simply were not given the opportunity to speak, to explain their election program and answer delegates’ questions. After the first few phrases from the Congress participants the microphones in the room were turned off, so that only organizers were heard. Congress organizers even allowed themselves to communicate with the present audience in a rude and insulting manner, for which, however, they later apologized, realizing that "have gone too far." Voting on members of the Counting Commission was held in the favorite format of the Audit Chamber – by list. Naturally, it was a pre-prepared list of the Chamber. Nominees to the Counting Commission by the Congress delegates were not even put to a vote. Moreover, one of the members of the organizing committee practically all the time presided over the counting commission, apparently, teaching certified auditors how to calculate properly.

To confirm the unreliability of this information, in its lawsuit the ACU only quoted Order of convening and holding Congress of auditors. Certainly, this proves that the head of the of ACU did not offend colleagues at the congress. And the 257 auditors present at the congress that witnessed this probably just have not read the order or did not understand anything from it.

15. Voting proceeded with gross violations of the order adopted by the Audit Chamber itself. A decision on secret voting on candidates to members of the ACU (which is already provided for by the order) has been adopted by the majority of participants of the congress. Yet organizers repeatedly put this issue to a vote, to hold a public vote by mandates, with practically all suggestions from the audience ignored by the organizing committee and never put to the vote.

In its lawsuit the ACU persuaded the court that this never happened, as the minutes of the Congress auditors have it differently. But the Congress minutes were prepared by none other than the organizers. The lie has come full circle.

16. Thus, the auditors of Ukraine witnessedhow the group of persons by prior conspiracy, re-seized power through fraud. Our colleagues have adopted a deceit as a source of power. Deceiting Ukrainian Auditors, deceiting professional associations, deceiting public authorities, deceit of international organizations. And this is within a profession where honesty is a fundamental principle. In this manner one can go quite far. But every lie will be revealed sooner or later. Do the ends justify any means which lead to their achieving? And what to expect from these people next?

This article reflects the author's opinion regarding the latest developments in the audit profession. The full stop in resolving the issues is yet to be put at the court. But until the competent state authorities undertake to restore order in the regulation of auditing, the situation is unlikely to change significantly.

Then, as they say, simply no comments. Apparently, members of the ACU, who came to power through deception, believe that the "business reputation" of the Chamber is greatly damaged by the assertion that integrity is a fundamental principle of profession. Of course, since it is unlikely that they were voted for by the auditors, whom they treacherously deprived of voting rights.

Another telling fact is that the ACU first tried to deny some of phrases from the article, and then excluded from the claim.

Thus, proponents of the positive reputation initially wanted to appeal the sentence "The Congress organizers brought armed guards to the Congress" at the same time providing a copy of the contract with the Office of the State Security Service of the Interior Ministry of Ukraine in Kiev. Iron logic: the officers of the State Security Service are not armed guards.

Also in the first edition of the lawsuit the ACU wanted to appeal against the phrase that some public bodies "duplicating the functions of the Audit Chamber, conduct their registries of auditors and issue them certificates".

In addition, the Audit Chamber wanted to to refute the author's opinion that members of the the ACU engaged in plagiarism in the preparation of their electoral program. Besides they did not like the statement that the search for "Plagiarism by officials of the Audit Chamber of Ukraine" on the Internet contains information about plagiarism on the part of the Commissioner of the ACU for quality control and professional ethics N.I. Gaevskaya.

Already 26December 2012, two days after the last hearing when the full text of the judgment has not yet seen the light, the official website of the Audit Chamber posted information about it. Revanchists from the ACU promptly inform the public of its audit Pyrrhic victory and at the same time "accidentally forgot" to specify which snatches the servants of Themis deemed inaccurate. And absolutely no one is concerned that the provision of incomplete information, too, is a fraud, because it may be misleading. Everybody has already got used to deceit on the part of the members of the Audit Chamber, elected themselves to the illegitimate Congress auditors. But the truth will not be able to hide or fabricated for disciplinary action, nor for the "objective and fair" decisions of the courts.

P.S. For ardent defenders of the various types of reputation we should make a special caveat: this article entirely, and any phrase or word from it is the subjective opinion of the author and value judgment.