Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 27, 2017 No. 12
In order to ensure uniform application by courts of the norms of the criminal law on liability for smuggling (Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), as well as in connection with issues that have arisen among the courts, the Plenum of the Supreme Court of the Russian Federation, Guided by Article 126 of the Constitution of the Russian Federation, Articles 2 and 5 of the Federal Constitutional Law of February 5, 2014 N 3-FKZ “On the Supreme Court of the Russian Federation”, decides to give the following clarifications:
1. When considering criminal cases of smuggling, courts must take into account that the legal regulation of customs relations in the Russian Federation is carried out in accordance with international treaties and the legislation of the Russian Federation on customs affairs.
International treaties, in particular, include the Treaty on the Eurasian Economic Union of May 29, 2014 (hereinafter referred to as the Treaty and the Union, respectively), as well as other international treaties concluded by the Russian Federation with member states of the Union, other states (for example, the Agreement on unified principles and rules for the circulation of medicines within the Eurasian Economic Union of December 23, 2014).
To draw the attention of the courts to the fact that in accordance with paragraph 1 of Article 101 of the Treaty, before the entry into force of the Customs Code of the Eurasian Economic Union, customs regulation in the Union is carried out in accordance with the Treaty on the Customs Code of the Customs Union dated November 27, 2009 (hereinafter referred to as the Customs Code of the Customs Union) and other international treaties of the member states regulating customs legal relations, concluded within the framework of the formation of the legal framework of the Customs Union (for example, the Agreement on the procedure for the movement of narcotic drugs, psychotropic substances and their precursors through the customs territory of the Customs Union of October 24, 2013).
Taking into account the provisions of paragraph 2 of Article 101 of the Treaty, under the terms used in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation “customs border of the Customs Union within the framework of the EurAsEC” (“customs border of the Customs Union”), “State border of the Russian Federation with member states of the Customs union within the EurAsEC" should be understood accordingly as "the customs border of the Eurasian Economic Union" (hereinafter - the customs border), "The state border of the Russian Federation with the member states of the Eurasian Economic Union" (hereinafter - the state border).
2. Courts should take into account that the procedure for moving goods and other items across the customs border or state border, as well as prohibitions and (or) restrictions associated with such movement, along with the legislation of the Russian Federation (on customs, on the State Border of the Russian Federation, on currency regulation and exchange control, on export control and others) are established by the law of the Union (Articles 6 and 32 of the Treaty).
The law of the Union also includes decisions and orders of the permanent regulatory body of the Union - the Eurasian Economic Commission, adopted within the framework of its powers (for example, decision of the Board of the Eurasian Economic Commission dated April 21, 2015 N 30 “On non-tariff regulation measures”).
When considering cases of smuggling of cultural property, courts should take into account that the list of cultural property for which a permitting procedure for export from the customs territory of the Union has been established, the rules for their export from the Russian Federation to other states that are not member states of the Union are determined by decisions of the Board of the Eurasian Economic commissions.
3. When deciding whether a person’s actions contain signs of crimes provided for in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation, courts must establish that illegally transported goods or other items belong to the contraband items listed in these articles.
If special knowledge is required when establishing that illegally transported goods or other items are contraband, then the courts must have the appropriate opinions of experts or specialists.
4. When determining the value of contraband items illegally transported across the customs border or state border, courts should proceed from state regulated prices, if any; in other cases, the amount of the indicated value is determined on the basis of the market value of goods, with the exception of goods moved by an individual across the customs border for personal use, in respect of which the customs value determined in accordance with Chapter 49 of the Customs Code of the Customs Union is used. In this case, it is necessary to take into account legal norms that make it possible not to take into account that part of the value of illegally moved goods that is allowed to be moved without declaration and (or) was declared (for example, note 3 to article 200.1, note 2 to article 200.2 of the Criminal Code of the Russian Federation).
In the absence of information about the price of a product, its value is determined based on the opinion of an expert or specialist.
5. The movement of goods and other items across the customs border or state border consists of carrying out actions to import, respectively, into the customs territory of the Union or the territory of the Russian Federation or export from these territories of goods or other items in any way.
The illegal movement of goods or other items across the customs border should be understood as the movement of goods or other items outside established places or during unspecified working hours of customs authorities in these places, or with concealment from customs control, or with false declaration or non-declaration of goods, or with the use of documents containing false information about goods or other items, and (or) using counterfeit means of identification or those related to other goods or other items.
When establishing the fact of illegal movement of goods or other items across the state border, courts must take into account that the legal regulation of the import or export of goods and other items from the territory of one member state of the Union to the territory of another member state of the Union has its own characteristics.
In particular, despite the fact that the Union ensures freedom of movement of goods, services, capital and labor, paragraph 3 of Article 29 of the Treaty allows for the possibility of limiting the turnover of certain categories of goods on the grounds specified in paragraph 1 of this article of the Treaty. In this case, the procedure for the movement or circulation of such goods in the customs territory of the Union is determined in accordance with the Treaty, as well as international treaties within the framework of this Union.
In addition, on the territory of the Russian Federation, based on the provisions of paragraph 2 of Article 129 of the Civil Code of the Russian Federation, legal regulation measures may be introduced by law or in the manner prescribed by law that restrict the free circulation of certain substances or items, in particular, those that pose a threat to public safety.
6. Illegal movement of goods or other items across the customs border during smuggling can be accomplished by concealing goods or other items from customs control, that is, by performing any actions aimed at making it difficult to detect such goods (items) or concealing their true properties or quantity, including giving one goods (items) the appearance of others, the use of hiding places specially made or adapted for smuggling in items of luggage, clothing or equipped on vehicles used to move goods or other items across the customs border.
7. Non-declaration as a possible method of committing smuggling consists in a person’s failure to comply with the requirements of the Union law and the legislation of the Russian Federation on customs matters regarding the declaration of goods, that is, the entire product or part of it is not declared to the customs authority (a part of a homogeneous product is not declared, or when declaring a consignment, consisting of several goods, information about only one product is reported in the customs declaration, or a product other than the information about which was declared in the customs declaration is presented to the customs authority).
If the declarant or customs representative in the customs declaration declares untrue (unreliable) information about the qualitative characteristics of the goods necessary for customs purposes (for example, information about the name, description, classification code according to the Unified Commodity Nomenclature for Foreign Economic Activity of the Union, about the country of origin, about the customs value), then these actions should be considered as an unreliable declaration of goods.
It should be taken into account that the information necessary for customs purposes is information submitted to the customs authorities for making a decision on the release of goods, placing them under the selected customs procedure, calculation and collection of customs duties, or information affecting the application of prohibitions or restrictions to goods .
8. Courts should keep in mind that in case of smuggling committed by using documents containing false information about goods or other items to the customs authority as grounds or conditions for the movement (placement under the customs procedure) of goods or other items specified in Articles 200.1 , 200.2, 226.1, 229.2 of the Criminal Code of the Russian Federation, documents may be submitted containing false information, in particular, about the name, description, classification code according to the Unified Commodity Nomenclature for Foreign Economic Activity of the Eurasian Economic Union, about the country of origin, departure, about customs value, about the description of packaging (quantity, type, marking and serial numbers).
The use of counterfeit means of identification or those related to other goods during smuggling is the use of counterfeit customs seals, seals, other means of identification or genuine means of identification related to other goods.
The illegal movement of goods or other items, committed using a counterfeit official document or seal made by another person, is fully covered by smuggling and does not require additional qualifications under Article 327 of the Criminal Code of the Russian Federation.
If a person uses an official document or seal that he has forged, the act is qualified as a set of crimes provided for in Article 327 of the Criminal Code of the Russian Federation and Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation.
9. Smuggling committed when importing goods or other items into the customs territory of the Union or exporting from this territory outside established places (customs border checkpoints) or during unspecified working hours of customs authorities in these places is a completed crime from the moment the goods actually cross or other items of the customs border.
In cases where other methods of illegal movement of goods or other items are used in smuggling, for example, false declaration or the use of documents containing false information about goods or other items, smuggling is considered completed from the moment a customs declaration or other document allowing import is submitted to the customs authority. the customs territory of the Union or the export of goods or other items from this territory for the purpose of their illegal movement across the customs border.
10. In criminal cases of crimes provided for in Articles 226.1 and 229.1 of the Criminal Code of the Russian Federation, in cases where the illegal movement of a contraband item was carried out not only across the customs border, but also across the state border, the offense should be considered as one crime if there is a single intent of the person to performing the listed actions. If a person who has committed smuggling of items specified in Articles 226.1 and 229.1 of the Criminal Code of the Russian Federation across the customs border subsequently has the intent to move the same items across the state border, the act constitutes a set of crimes.
11. Draw the attention of the courts that, in accordance with Note 4 to Article 200.1 of the Criminal Code of the Russian Federation, a person is exempt from criminal liability if he voluntarily surrendered funds and (or) monetary instruments and if his actions do not contain another crime. Within the meaning of the law, voluntary surrender means the issuance of cash and (or) monetary instruments to representatives of law enforcement agencies of one’s own free will, despite the real opportunity to dispose of them.
If a person, along with smuggling cash and (or) monetary instruments, is accused of committing other crimes, he is exempt from liability under Article 200.1 of the Criminal Code of the Russian Federation, regardless of whether he is held accountable for committing other crimes.
12. If a person, along with the illegal movement across the customs border or across the state border of the items listed in Articles 226.1 and 229.1 of the Criminal Code of the Russian Federation, commits an intentional unlawful act related to the illegal trafficking of these items, including their transportation, then the act is subject to classification in its entirety crimes provided for in Articles 226.1 and (or) 229.1 of the Criminal Code of the Russian Federation and the corresponding articles of the Criminal Code of the Russian Federation (in particular, Articles 218, 220, 222, 222.1, 228, 228.1, 228.2, 228.3, 228.4, 234, 355 of the Criminal Code of the Russian Federation).
13. If smuggling is recognized as committed by an organized group, the actions of all its members who took part in the preparation or commission of this crime, regardless of their actual role, should be qualified under the third part of Article 200.2, the third part of Article 226.1, paragraph “a” of the fourth part of Article 229.1 of the Criminal Code of the Russian Federation without reference to Article 33 of the Criminal Code of the Russian Federation (for example, some members of an organized group purchased goods or other items, others illegally moved them across the customs border, and still others directed these actions).
14. If a person in possession of goods or other items has carried out their illegal movement across the customs border or state border, using for these purposes another person who did not realize the illegality of such movement, he is subject to liability under Articles 200.1, 200.2, 226.1 and ( or) 229.1 of the Criminal Code of the Russian Federation as the perpetrator of these crimes. In these cases, the actions of a person who was not aware of the fact that he was committing smuggling are not criminally punishable.
15. The recipient of an international postal item containing contraband, if he, in particular, found, placed an order, paid, provided his personal data, address, provided methods for receiving and (or) concealing the ordered goods, is subject to liability as a smuggler.
16. When deciding on the territorial jurisdiction of a criminal case for crimes provided for in Articles 200.1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation, courts should proceed from the provisions of Article 32 of the Criminal Procedure Code of the Russian Federation (hereinafter referred to as the Code of Criminal Procedure of the Russian Federation) and take into account paragraph 1 Article 5 of the Treaty on the specifics of criminal and administrative liability for violations of the customs legislation of the Customs Union and member states of the Customs Union, according to the provisions of which a criminal case is initiated and investigated at the place where the crime was committed, and if it is impossible to determine the place where the crime was committed, at the place where the crime was discovered.
In particular, if a contraband item is moved into the customs territory under the guise of goods through a registered international postal item (registered mail, parcel post, small package), the place of commission of such a crime is the place where operations related to its release are carried out with such goods (place of international postal exchange).
If the specified item of smuggling is moved into the customs territory by simple (unregistered) international postal item and it is impossible to establish the exact location of movement across the customs border or the state border of such postal item, then the place of the crime should be considered: the recipient's postal address - in the case when the postal item was received by the addressee ; address of a postal organization - in the case when the postal item is delivered to the recipient at a postal organization or seized from it by law enforcement officers.
17. Draw the attention of the courts to the need to apply the provisions of Chapter 15.1 of the Criminal Code of the Russian Federation on the confiscation of items of illegal movement across the customs border or state border, liability for which is established by Articles 200.1, 200.2, 226.1 and (or) 229.1 of the Criminal Code of the Russian Federation, and any income from this property, with the exception of property and income from it, subject to return to the rightful owner.
If the owner of contraband items is a person found guilty of their illegal movement, then such contraband items are subject to confiscation.
18. In accordance with part three of Article 81 of the Code of Criminal Procedure of the Russian Federation, when passing a sentence, as well as a ruling or resolution to terminate a criminal case, the court must resolve the issue of contraband items recognized as material evidence and vehicles used for the illegal movement of goods or other items across the customs border or state border.
If a vehicle belonging to the culprit was equipped with special storage facilities for hiding goods or other items when moving them across the customs border or state border (hiding places made for the purpose of concealing goods, as well as structural containers and objects equipped and adapted on vehicles for the same purposes, previously subjected to disassembly and installation), then it is considered as an instrument of crime and is subject to confiscation in accordance with paragraph 1 of part three of Article 81 of the Code of Criminal Procedure of the Russian Federation.
When a criminal case is terminated on non-rehabilitative grounds, the person must be explained the legal consequences of such termination, including the possibility of confiscation of property belonging to him, recognized as material evidence.
If the legal owners are not identified, the contraband items must be turned into state property by a court decision in the manner prescribed by law.
Disputes about the ownership of contraband items recognized as material evidence are resolved through civil proceedings.
Contraband items prohibited for circulation (narcotic drugs, psychotropic substances, their analogs, weapons, etc.), in accordance with paragraph 2 of part three of Article 81 of the Code of Criminal Procedure of the Russian Federation, are subject to transfer to the appropriate institutions or are destroyed.
19. Recognize that Resolution of the Plenum of the Supreme Court of the USSR of February 3, 1978 No. 2 “On judicial practice in cases of smuggling” is invalid on the territory of the Russian Federation.
Recognize as invalid the resolution of the Plenum of the Supreme Court of the Russian Federation dated September 28, 2010 No. 23 “On introducing amendments to the resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 2008 No. 6 “On judicial practice in cases of smuggling.”
Beware, scam? (Brief comparative analysis of RF PPVS No. 48 from and PPVS No. 51 from)
As a preamble, we should explain why we are comparing both decisions. Let me remind everyone that acts of interpretation of the highest court are considered in relation to the historical moment, since in this case the uniformity of judicial practice, which the Resolution is intended to serve, ensures historical interpretation as well. Thus, if there was something in the PPVS, but disappeared, this directly indicates to the law enforcement officer that the Supreme Court requires this practice to be abandoned as incorrect.
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So, the first two general remarks. 1) calling the resolution new is a stretch. It retains approximately 70% of the old text, and is supplemented mainly by interpretations of fractional frauds with which the Criminal Code has grown. 2) As one of my wise friends says: “It didn’t get better, it got different.” In this case, this is not entirely true. In the new PPVS (hereinafter - PPVS No. 48), unlike the old one (hereinafter - PPVS No. 51), there are no several very significant, frankly unsuccessful formulations that opened the gateway to terrible arbitrariness, as well as simply stupid blunders in the spirit of shares as documentary bearer securities ( for the last special thank you, because I didn’t have the strength to explain to the students that they even wrote something like that). The plenum, as usual, ignored complex and high-tech topical issues: real estate and other objects that have changed in regulation in the Civil Code, cryptocurrency and other virtual things, financial instruments, corporate affairs, and also traditionally failed to cope with payment cards. Probably, given the current lag of criminal justice from other areas, this should be recognized as not the worst option. Otherwise we would risk getting some senseless freak. We take the text of PPVS No. 48 as a starting point and move along it.
