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Application of sanctions for violation of customs rules under the Customs Code of Ukraine

State Customs Service of Ukraine issued the Letter No 20/1-11/05503-EH dated 06/06/2012, in which the Customs clarifies an order for appliance of sanctions for the violation of custom rules and which was recorded before the entry into force of new Custom Code of Ukraine (01.06.2012). The clarification is given on an example of the Art. 485 of the Customs Code of Ukraine (“Actions aimed at illegal exemption from payment of customs duties or for reduction of their size, as well as other illegal actions, aimed at avoidance from payment of customs duties”), but also applicable to other violations.

Thus the Customs Service clarifies that if the violation have been committed before the entry into force of the new Custom Code, but was discovered after 01.06.2012, in such case the qualification of the offender’s actions should be effected in accordance with laws which are in force at the moment of drawing up the protocol minutes about violation of custom rules.

At the same time the Customs Service points to the constitutional principle of relation back in time of laws and any other legislative acts in cases, when they mitigate or exclude the liability of a person. Thus, the sanction provided by the Customs Code of Ukraine is applicable for the violation committed and fixed before 01.06.2012 only if it doesn’t exceed the previous sanctions for the same violations.

The similar position regarding the principle of relation back in time the laws is contained in the part 3 Art. 3 of the Customs Code of Ukraine. In addition, it is stated that norms of the laws which establish or increase the liability for violations don’t have the retroactive force.

As for the qualification of the violation under the Art. 485 of the Custom Code of Ukraine, the Custom Service clarifies that if such act was not recognized as illegal according to the norms applicable at the time of its commission and didn’t make the corpus delicti under the Art. 354 and Art. 355 of the Customs Code of Ukraine dated 11.07.2002, in this case the grounds for bringing a person to responsibility are absent.