Evasion of customs duties – Article 194 of the Criminal Code of the Russian Federation

ST 194 of the Criminal Code of the Russian Federation.

1. Evasion from payment of customs duties levied on an organization or individual, committed on a large scale, -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by compulsory labor for a term of up to four hundred eighty hours, or by forced labor for a term of up to two years, or by imprisonment freedom for the same period.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) has become invalid;

c) has become invalid;

d) on an especially large scale, -

shall be punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of two to three years, or by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

3. Acts provided for in parts one or two of this article, committed:

a) by an official using his official position;

b) with the use of violence against a person exercising customs or border control -

shall be punishable by imprisonment for a term of five to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, and with or without restriction of freedom for a term of up to one and a half years.

4. Acts provided for in parts one, two or three of this article, committed by an organized group, -

shall be punishable by imprisonment for a term of seven to twelve years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, and with or without restriction of freedom for a term of up to two years.

Note. Evasion from paying customs duties is recognized as committed on a large scale if the amount of unpaid customs duties for goods moved across the customs border of the Eurasian Economic Union, including in one or more consignments, exceeds two million rubles, and in an especially large amount - six million rubles

The corpus delicti provided for in Part 1 of Article 194 of the Criminal Code of the Russian Federation

Object: social relations developing in the field of state and customs regulation.
The subject of the crime is customs payments listed in Chapter 6 of the EAEU Labor Code. So, in particular, this is:
- customs payments (import and export customs duties, VAT and excise taxes levied when importing products into the territory of the Customs Union);
Objective side: failure of citizens or legal entities to fulfill the obligation to pay customs duties. A mandatory sign is a large amount of unpaid customs duties (from 2 million to 6 million rubles).
Subject: a person who is responsible for paying customs duties. According to Article 50 of the EAEU Labor Code, these are the declarant and other entities.
Subjective side: guilt in the form of direct intent.

Circumstances aggravating the guilt of the subject are:

committing a crime as part of a group of entities by prior conspiracy, as well as failure to pay payments on a particularly large scale (more than 6 million rubles);
commission of a crime by an individual using his official position, as well as using violence against the entity exercising border or customs control;
committing a crime as part of an organized group.

If a person fails to pay payments in a smaller amount, he faces administrative liability under Article 16.22 of the Code of Administrative Offenses of the Russian Federation.

Commentary to Art. 194 Criminal Code

1. The subject of the crime is customs payments. These include (Article 70 of the Customs Code of the Customs Union): import customs duty; export customs duty; value added tax levied when importing goods into the customs territory; excise tax levied on the import of goods into the customs territory. Customs duties also refer to customs payments, however, due to the voluntariness of their payment, they cannot be the subject of this crime.

The tax base for the purposes of calculating customs duties and taxes is the customs value of goods and (or) their quantity. Customs duties and taxes are calculated independently by the declarant or other persons responsible for the payment of customs duties and taxes.

2. The objective side of the crime is characterized by inaction - non-payment of customs duties on a large scale (over 1 million rubles for individuals and 2 million rubles for organizations).

Methods for evading customs duties can be any: underestimating the value of goods being moved, concealing goods, incorrectly indicating the customs regime, the country of origin of goods, etc.

3. In case of non-payment or incomplete payment of customs duties and taxes within the established time limits, customs authorities shall collect customs duties and taxes forcibly. In this regard, no later than 10 days from the date of discovery of the fact of non-payment or incomplete payment of customs duties, a demand for payment of customs duties is sent to the payer. The deadline for fulfilling the requirement to pay customs duties is no less than 10 working days and no more than 20 calendar days from the date of receipt of the requirement. In case of failure to comply with this requirement, the customs authorities take measures to forcefully collect customs duties.

The crime is considered completed from the moment the deadlines established for the payment of customs duties expire.

4. Responsibility for paying customs duties lies with the declarant - the person who declares the goods or on whose behalf the goods are declared. If the declaration is made by a customs broker, he is responsible for paying customs duties and taxes.

5. Qualification under clause “b”, part 3, art. 194 of the Criminal Code covers the infliction of beatings on a person exercising customs or border control, the commission of other violent acts that cause physical pain, the intentional infliction of light, moderate or grievous harm to health (Part 1 of Article 111 of the Criminal Code of the Russian Federation).

Punishment for evasion of customs duties

Alternative sanctions under Part 1 of Article 194 of the Criminal Code of the Russian Federation:

a fine from 100 thousand to 500 thousand rubles (or in the amount of the earnings of the guilty individual for a period of 1 to 3 years);
up to 480 hours of compulsory work;
up to 2 years of forced labor;
up to 2 years in prison.

In the presence of the aggravating circumstances described above, the punishment is increased. So, for example, if a crime is committed as part of an organized group, the individual faces a prison term of 7 to 12 years. As an additional punishment, a fine of up to 1 million rubles or restriction of freedom for up to 2 years may be applied.

It is worth remembering that in the event of a conviction, the person will also have to pay customs duties.

Article 194. Evasion of customs duties levied on an organization or individual

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Criminal Code of the Russian Federation
Article 194. Evasion of customs duties levied on an organization or individual

1. Evasion of customs duties levied on an organization or an individual, committed on a large scale,
is punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of one to three years, or by compulsory labor for a term of up to four hundred eighty hours, or by forced labor for a term of up to two years, or by imprisonment for the same term.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) (Clause “b” has lost force on the basis of Federal Law of December 8, 2003 N 162-FZ - Collection of Legislation of the Russian Federation, 2003, N 50, Art. 4848)

c) (Clause “c” has lost force on the basis of Federal Law of December 8, 2003 N 162-FZ - Collection of Legislation of the Russian Federation, 2003, N 50, Art. 4848)

d) on an especially large scale, -

3. Acts provided for in parts one or two of this article, committed:

a) by an official using his official position;

b) with the use of violence against a person exercising customs or border control -

(Part three was introduced by Federal Law of December 7, 2011 N 420-FZ - Collection of Legislation of the Russian Federation, 2011, N 50, Art. 7362)

4. Acts provided for in parts one, two or three of this article, committed by an organized group, -

(Part four was introduced by Federal Law of December 7, 2011 N 420-FZ - Collection of Legislation of the Russian Federation, 2011, N 50, Art. 7362)

Commentary on Article 194

An object

crimes - the established procedure for carrying out foreign economic activity and paying customs duties.

When moving goods across the customs border of the Russian Federation, they are subject to customs duties, except for cases provided for by current legislation.

According to Art. 318 of the Customs Code of the Russian Federation, customs payments include: import or export customs duties; value added tax and excise tax levied when importing goods into the customs territory of the Russian Federation; customs duties.

Import or export customs duty is a mandatory payment to the federal budget collected by customs authorities when importing goods into the customs territory of the Russian Federation or exporting goods from this territory.

Customs duties are understood as payments, the payment of which is one of the conditions for the customs authorities to perform actions related to customs clearance, storage, and tracking of goods.

Value added tax and excise tax levied when importing goods into the customs territory of the Russian Federation are mandatory payments paid to the federal budget.

The calculation procedure, as well as the deadlines for payment of customs duties, are established in accordance with the Customs Code of the Russian Federation, the Tax Code of the Russian Federation, Law of the Russian Federation of May 21, 1993 N 5003-1 “On the Customs Tariff” <1>, Decree of the Government of the Russian Federation of November 27, 2006. N 718 “On the Customs Tariff of the Russian Federation and the commodity nomenclature used in foreign economic activity” <2>, Decree of the Government of the Russian Federation of November 29, 2003 N 718 “On approval of the Regulations on the application of uniform rates of customs duties and taxes in relation to goods transported across the customs border of the Russian Federation by individuals for personal use" <3> and other regulations.

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<1> RG. 1993. June 5.

<2> RG. 2006. 30 Nov.

<3> RG. 2003. December 2

For example, as a general rule, when importing goods, customs duties and taxes must be paid no later than fifteen days from the date of presentation of the goods to the customs authority at the place of their arrival in the customs territory of the Russian Federation or from the date of completion of internal customs transit, if the declaration of goods is made in a different place their arrival. When exporting goods, customs duties must be paid no later than the day the customs declaration is submitted (Article 329 of the Customs Code of the Russian Federation).

Objective side

the crime is expressed in inaction - evasion of customs duties levied on an organization or individual, the consequence in the form of a large amount, causation.

Evasion means complete or partial non-payment of customs duties, resulting in their non-receipt into the budget system of the Russian Federation. Methods of evasion are not indicated in the disposition of the commented article. They can be varied (for example, submission of false documents confirming the fact of payment of customs duties; simple non-payment of customs duties).

The act is completed at the moment of actual non-payment of customs duties on a large scale within the period established by the current legislation. The corpus delicti is material.

In accordance with the note to this article, a large amount is understood as the amount of unpaid customs duties exceeding five hundred thousand rubles, and in an especially large amount - one million five hundred thousand rubles.

A large amount can arise as a result of non-payment of several types of customs duties, which was covered by a single intent.

Subjective side

characterized by guilt in the form of direct intent. The person realizes that he is evading payment of customs duties on a large scale and wishes to do so.

Subject

special crime - an individual who has reached the age of sixteen years and is responsible for paying customs duties. In accordance with Art. 320 of the Labor Code of the Russian Federation, this person can be a declarant, a customs broker, the owner of a customs warehouse, a carrier, etc.

The qualifying feature is the commission of a crime on an especially large scale and by a group of persons by prior conspiracy (see Part 2 of Article 35 of the Criminal Code of the Russian Federation and the commentary thereto).

Seizing customs payments received by the budget by submitting deliberately false documents allegedly giving the right to return these funds as overpaid or collected (Article 355 of the Customs Code of the Russian Federation) should be qualified as fraud (Article 159 of the Criminal Code of the Russian Federation).

In accordance with paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 2008 No. 6 “On judicial practice in cases of smuggling” <1> do not constitute smuggling and are subject to qualification only under Art. 194 of the Criminal Code of the Russian Federation actions related to evasion of customs duties, committed after the customs authority made a decision to release goods into free circulation (for example, in cases of use of imported goods in the customs territory of the Russian Federation contrary to the conditions for placing these goods under the customs regime, the content of which stipulates full or partial exemption from customs duties or refund of amounts paid, or in cases where the method of obtaining permission from the customs authority to release goods and thereby evading customs duties is not related to the commission of actions listed in the disposition of Part 1 of Article 188 Criminal Code of the Russian Federation).

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<1> Official website of the Supreme Court of the Russian Federation (www.supcourt.ru).

For violation of deadlines for payment of customs duties that do not amount to a large amount, administrative liability is established (Article 16.22 of the Code of Administrative Offenses of the Russian Federation).

Let's look at what sentences Russian courts pass under Article 194 of the Criminal Code of the Russian Federation

In 2012-2014, the Generation Group helped affiliated companies bring 7 drilling rigs into Russia from Romania. Employees of PC "Generation" misled customs officers by indicating that they were importing into Russia not disassembled units, but spare parts for them. After this, the equipment was assembled at the company's plant and sold. As a result of these actions, the budget did not receive more than 100 million rubles. Initially, the top managers of the Generation Group were charged not only with evading customs duties, but also with organizing a criminal community (Article 210 of the Criminal Code of the Russian Federation), as well as committing illegal currency transactions (Article 193.1 of the Criminal Code of the Russian Federation). However, the court found the top managers guilty only of evading customs duties on an especially large scale. Employees of the Generation Group received a suspended sentence of 7 to 7.5 years in prison.

One more example

An individual entrepreneur from Sakhalin imported used cars from Japan into Russia in 2011-2012. The cars were cut right on the sea vessel, and the cars were imported to Russia as spare parts. Upon completion of customs clearance and release by customs authorities of imported vehicles under the guise of automobile components, the entrepreneur carried out reassembly. Next, the convict acquired counterfeit documents and carried out some operations at the traffic police for the subsequent sale of cars. In total, 12 cars were imported into Russia in this way; the amount of unpaid customs duties amounted to 8 million rubles. The individual entrepreneur was found guilty of committing a crime under Article 194 of the Criminal Code of the Russian Federation. As punishment, the citizen was given a fine of 300 thousand rubles.

Does a citizen suspected or accused of evading customs duties need a criminal lawyer? Of course, yes, especially if the person is suspected or accused of committing other crimes (most often in organizing a criminal community). In this case, without the help of an experienced specialist, the citizen risks receiving a severe punishment in the form of imprisonment.

Article 194. “Criminal Code of the Russian Federation” dated June 13, 1996 N 63-FZ (as amended on December 30, 2021)

Article 194. Evasion of customs duties, special, anti-dumping and (or) countervailing duties levied on an organization or individual

1. Evasion of customs duties, special, anti-dumping and (or) countervailing duties levied on an organization or individual, committed on a large scale -

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) has become invalid. — Federal Law of December 8, 2003 N 162-FZ;

c) has become invalid. — Federal Law of December 8, 2003 N 162-FZ;

d) on an especially large scale, -

3. Acts provided for in parts one or two of this article, committed:

a) by an official using his official position;

b) with the use of violence against a person exercising customs or border control -

4. Acts provided for in parts one, two or three of this article, committed by an organized group, -

Note. Evasion from paying customs duties, special, anti-dumping and (or) countervailing duties is recognized as committed on a large scale if the amount of unpaid customs duties, special, anti-dumping and (or) countervailing duties for goods moved across the customs border of the Eurasian Economic Union, including in one or more consignments, exceeds two million rubles, and in a particularly large amount - six million rubles.

What can a lawyer do?

achieve termination of the criminal case (prosecution);
assist in reclassifying the act from parts 2-4 to part 1 of Article 194 of the Criminal Code of the Russian Federation, which provides for less stringent sanctions;
assist in reclassifying the act to another article of the Criminal Code of the Russian Federation, providing for a less severe punishment;
achieve the most lenient possible punishment;
achieve the imposition of the main punishment without applying an additional one;
achieve an acquittal with subsequent rehabilitation.

The choice of defense tactics will depend on the circumstances of the criminal case.

If you are counting on the maximum result, it is recommended to contact a lawyer as early as possible, ideally at the pre-investigation stage. In this case, the specialist will have time to prepare and think more carefully about the upcoming defense.

If you or your loved one are suspected (accused) of evading customs duties, contact the lawyers of JSC “Trial Advocate” at any time of the day. We will immediately begin to provide you with legal assistance.