On Wednesday, November 29, I had the opportunity to take part in a working meeting at the Stolychny m / n, organized by the Kyiv City Customs and the Public Council. Representatives of the Public Councils raised a very important issue: conducting customs inspections on the initiative and with the participation of law enforcement. In December, law enforcement officers become very active and send to customs entire lists of importers whose goods need to be inspected.
I was pleasantly impressed by the position voiced by the head of the Kyiv City Customs Serhiy Tupalsky. He said that the customs in this matter strictly adheres to the requirements of the law and does not appoint customs inspections on the basis of letters that do not meet the requirements of the Cabinet of Ministers Resolution №467.
But I know that not all customs chiefs so openly oppose illegal demands of militiamen. Customs authorities often order customs inspections and carry them out under the close supervision of other law enforcement officers.
Therefore, I want to call on importers and customs brokers to help customs officers in this matter 🙂 and "drive in the neck" from the customs control zone those law enforcement officers who do not have the right to participate in customs inspection, but only seek their own gain.
I will briefly explain the legal grounds for this:
1. I will start with the appointment of a customs inspection on the basis of letters from law enforcement agencies.
I will add some certainty at once. Customs officers are also law enforcement officers, but this will be about others - the military prosecutor's office, the Security Service and the National Police.
In most cases, a customs inspection is appointed in case the risk management system is activated. There are a number of other grounds for conducting a customs inspection: failure to submit the MD in due time, detection of "no man's land" goods, failure of the declarant to fulfill its obligations (Part 3 of Article 338 of the ICU).
In addition, there is such a vague wording in Part 5 of Article 338 of the ICU, which allows for customs inspection "If there are sufficient grounds to believe that the movement of these goods, vehicles across the customs border of Ukraine is carried out outside customs control or with concealment from customs control, including in the case of obtaining relevant official information from law enforcement agencies". An exhaustive list of such grounds was approved by the Cabinet of Ministers Resolution №467 of May 23, 2012. The wording contained in this list clearly does not make it "exhaustive", but now it is not about that, but about the "order of law enforcement".
In item 14 of the specified list it is specified that customs inspection is carried out in case "Receipt in cases established by law from law enforcement agencies of written instructions in the form in accordance with the annex in criminal proceedings, operational search or counterintelligence". That is, we are not talking about letters with huge lists of companies, but about orders. The form of the power of attorney is defined and approved in the appendix to the resolution of the Cabinet of Ministers №467. Such a power of attorney must indicate the period of its validity, the number of criminal proceedings, and specific goods / vehicles and other information.
If the customs inspection was appointed on the basis of such an order of the law enforcement agency, it is necessary to indicate this in the act of customs inspection in column 4.
2. Now about the participation of law enforcement officers in the customs inspection.
The fact that the customs inspection is carried out on the basis of a law enforcement inspection does not mean that the employees of this body have the right to participate in its conduct.
First, if law enforcement officers want to participate in the customs inspection, the names, patronymics of law enforcement officers who will participate in its conduct, must be specified in the order of the law enforcement agency.
Secondly, customs inspection is carried out in customs control zones, which imposes certain restrictions on the participation of law enforcement officers in its conduct. Law enforcement officers may be in the customs control zone only with the written permission of the head of the relevant customs or customs post (Part 2 of Article 332 of the ICU).
This restriction does not apply to employees of the SFS - the Department of Internal Security, interregional customs and others.
It is also worth mentioning the special units for combating corruption and organized crime of the Security Service of Ukraine. Not all SBU employees, namely employees of these units. According to item "and" h.4 Art. 12 of the Law of Ukraine "About organizational and legal bases of fight against organized crime" employees of such special division of SBU when carrying out fight against organized crime have the right to enter customs premises on the basis of the written order of the head of such special division . That is, the certificate of the SBU employee in such case is not enough.
Third, even if law enforcement officers have complied with the two previous paragraphs, they cannot interfere in the customs inspection. This is expressly prohibited by Part 2 of Article 332 of the Criminal Code of Ukraine.
Of course, it is the customs officers who must monitor compliance with the regime of the customs control zone and stop any violations. Moreover, at one time the SFS management warned the heads of customs about personal responsibility for maintaining law and order in the customs control zones (letter of the SFS 17172/7 / 99-99-27-03-01-17 dated 29.12.2014). However, it will not be superfluous if the importer or customs broker himself explains to the law enforcement officer the provisions of customs legislation and asks not to interfere in the customs inspection of his goods.
Some people think that there is nothing to be afraid of law enforcement officers, if everything is fine with the goods. However, their imagination should not be underestimated. Also, keep in mind that coordinating customs inspections with law enforcement also takes a long time and affects the duration of such inspections. Therefore, take courage and teach law enforcement not only to protect the law, but also to abide by it.
Sviatoslav Bartosh
partner of Bargen Law Firm
