The problems of unification of the legislation of member States of the customs Union in the field of liability for violation of customs regulations

This analytical material
prepared by the specialists of the Law Bar Customs & Corporate Lawyers

In connection with rapid development of integration processes in the framework of EurAsEC, the national legislation of the States-members of the Customs Union varies considerably and gradually passes the processes of harmonization and unification, which would allow for a gradual shift to a single common legal regulation.

In many areas of the customs legislation, with regard to, for example, the movement of goods, use of customs procedures, etc., unification is almost completed, as the key aspects of a sufficiently clearly stated in the customs code of the customs Union. In other words, customs rules, for the most part, unified. But, what happens in the case, if the person violated the rules, the change of customs rules was to lead to a change in responsibility for their violation?

Of the Customs code of the customs Union, it follows that administrative offences and crimes, administrative offences, on which in accordance with the legislation of the member States of the customs Union, customs authorities shall keep the administrative process (for manufacturing), and the crime, the production of which is referred to competence of customs authorities in accordance with the legislation of the member States of the customs Union. The customs bodies of the States - members of the customs Union are the administrative process (for manufacturing) in cases of administrative offences and attract persons to administrative responsibility in accordance with the legislation of the member States of the customs Union.

Thus, currently, the issues associated with the violation of the customs rules, solved at the level of the national legislation of the States-members of the Customs Union. It should be noted that after the entry into force of the Customs code of the customs Union (with 01.07.2010) no material changes in the Chapter Code of the Russian Federation about administrative offences (hereinafter - the administrative code of the Russian Federation), on administrative violations in the field of customs business, is made. In other words, responsibility for violation of customs regulations is regulated by the national legislation, which are not provided in accordance with the international legal act, which relates the Customs code of the customs Union. What this means in practice?

Here's a simple example, in the administrative code of the Russian Federation shall be held responsible for non-compliance with the customs regime (article 16.19), in particular, for non-observance of conditions of a premise of the goods under the customs mode, the content of which provides for full or partial exemption from payment of the customs duties, taxes or return of the paid sums and (or) non-application of prohibitions and / or restrictions of an economic nature, as well as for the use or disposal of the goods in violation of the customs regime, under which they are placed. This article is quite often used in the practice of the customs authorities.
However, the Customs code of the customs Union does not contain the concept of «customs regime». Goods in accordance with the code in the import/export are placed under one of the customs procedures.

Thus, in the case of non-compliance with the participant of foreign economic activity conditions the placement of goods under any procedure, he may not be brought to responsibility under article 16.19 of the administrative code of the Russian Federation, since the disposition of this article speaks about the placement of goods under the customs mode, and the concept of the current customs legislation is absent. Exceptions may be some of the cases, specified in Section 8 of the Customs code of the customs Union (the «Transitional provisions»).

There is no unification of the legislation on administrative responsibility and at the level of national laws of the member States of the Customs Union. The legal norms in the field of liability for violation of the customs legislation of the Customs Union member States have serious differences, which leads to the objective contradictions on the way to the formation of a single economic space.

So, for example, or in the Republic of Belarus, nor in the Republic of Kazakhstan is not installed responsibility for violation of terms of temporary storage (section 16.16 of the administrative code of the Russian Federation) or for the submission of invalid documents for the release of goods prior to submission of the customs Declaration (article 16.17 of the administrative code of the Russian Federation). However, in the The administrative code of the Russian Federation there are no standards determining liability for non-notification of crossing of the customs border, or for don't stop means of transport at a place determined by the customs authority, at the same time, the responsibility for these offences is installed and in the Republic of Belarus, and the Republic of Kazakhstan.

Differ significantly and sanctions for the breach of law, the responsibility for which is provided in all member States of the Customs Union.

Also interesting to note that in the Republic of Belarus, for example, the court may make the decision on business about an administrative offence in the respect to the «unknown person», and in the Russian Federation and in the Republic of Kazakhstan to the responsibility involved legal entity, or an official or a citizen.

With regard to criminal legislation in all member States of the Customs Union there is a completely different approach to the definition, for example, the subject of smuggling.
Of course, this is only a small part of the examples, testifying to absence of unification of the legislation of member States of the customs Union in the field of liability for violation of customs regulations.

To overcome differences in the national legal systems in the field of legal liability July 5, 2010, the member States of the Customs Union was signed two important, in our opinion, international paper, namely, the Treaty on the peculiarities of criminal and administrative liability for violation of the customs legislation of the Customs Union and the member States of the Customs Union (hereinafter referred to as Agreement) and the Agreement on legal assistance and cooperation of customs bodies of the States-members of the Customs Union on criminal cases and cases on administrative offences (hereinafter - the Agreement).

07.02.2011 № 13-FZ, respectively.

In accordance with the Agreement, the types of crimes and administrative offences, as well as the procedure and principles attract persons to criminal and / or administrative sanctions shall be determined by the legislation of the Parties to the peculiarities established by the Contract. In this case each Party undertakes to take measures to amend its legislation and bring to a uniform definition of the wrongfulness of such acts. In other words, the Treaty establishes that, as was before, the issues of administrative and criminal liability are addressed at the level of the national legislation of the States-members of the Customs Union, that is, provides only a partial harmonisation of the legislation. So what are the features that should be reflected in the legislation of the Russian Federation?

A person who has committed an administrative violation in the customs territory of the customs Union, is subject to prosecution under the law of the Party in the territory of which revealed an administrative offence. Accordingly, the administrative process (production) is also under the law of that party.

It is interesting to note that the Agreement specifically stipulates the norm, that in the case of non-delivery of goods and documents on them in place of delivery, the person is subject to attraction to administrative responsibility according to legislation of the parties, the customs authorities where goods were produced in accordance with the customs procedure of customs transit.

Further, the Treaty also establishes that the person, in respect of which has entered validity the decision on business about an administrative offence in the territory of one Party, can not for the same act be subject to an administrative liability of the other Party.

The agreement defines the and the area of legal responsibility of the parties in detecting criminal offences. So, in case of impossibility to determine the place of Commission of the crime, it is considered the place of its discovery. If the offences are committed on the territory of several of the parties, the place of its Commission is considered to be the territory of the parties, at which it was committed last crime, and the criminal case can be investigated on the territory of the other side, where most of the crimes committed or the most serious of them. In the case of non-refoulement of one of the parties of the contract of a citizen of that party in respect of which the criminal prosecution of another party, the criminal case against the person is transferred to the side of the contract on nationality.

As for bringing to administrative responsibility, a person may not be brought to criminal prosecution for one and the same act by the Party to the territory of which the respective court decision has not come into legal force.

As for the Agreement, it is built on the generally recognized principles and norms of international law.
The purpose of the Agreement - the organization of interaction between customs bodies of the Parties on issues connected with rendering legal assistance in criminal and administrative cases in proceedings of the customs authorities of the Parties.

So, the Agreement, for example, found that requests for information and documents, the order of carrying out of separate procedural actions may be sent as between territorial customs bodies, as well as through the Central customs authorities. The requested customs authority may on its own initiative undertake not stipulated in the request, the instruction of actions connected with their execution.

It should be noted that the customs authorities in the execution of the orders for carrying out of separate procedural and other actions, received from the other The parties shall have the right to produce and actions such as the seizure or arrest of the goods and documents that are material evidence or subjects of an administrative offence, obtaining necessary for the production of the case or its consideration of information from state bodies and officials, expertise and other actions. It is important that the procedural and other actions on the cases of administrative offences shall be made in accordance with the law of the requested Party.

We should also bear in mind that each Party shall provide, on the written request of the other Party information on bringing persons to administrative responsibility if these persons are involved in administrative responsibility on the territory of the requesting Party.
Of course, the Treaty and the Agreement does not make any significant changes to the existing legislation nor the Russian Federation, no other member States of the Customs Union.
How the provisions of the Treaty and the Agreement may affect the activity of participants of foreign trade activities, as member States of the Customs Union will carry out the instructions contained in the acts, and what changes will be made, the time will show.