of May 27, 2008 No. 8-P
On the case of check of constitutionality of provision of part one of article 188 of the Criminal Code of the Russian Federation in connection with the claim of the citizen M. A. Aslamazyan
Constitutional court of the Russian Federation as a part of the chairman - the judge L. M. Zharkova, judges Yu. M. Danilov, G. A. Zhilin, V. D. Zorkin, S. M. Kazantsev, M. I. Kleandrov, N. V. Melnikov, N. V. Seleznyov, O. S. Hokhryakova,
with participation of the representative citizen M. A. Aslamazyan - the lawyer V. V. Parshutkin, the representative of the Federation Council - the doctor of jurisprudence E. V. Vinogradova,
being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Item 3 parts two of Article 22, Articles 36, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",
considered case on check of constitutionality of provision of part one of article 188 UK of the Russian Federation in open session.
Reason for consideration of the case was the claim of the citizen M. A. Aslamazyan. The basis to consideration of the case was the found uncertainty in question of whether there corresponds to the Constitution of the Russian Federation the legislative provision challenged by the declarant.
Having heard the message of the judge-speaker N. V. Melnikov, explanation of agents of the parties, speeches of the representatives invited in meeting: from the Supreme Court of the Russian Federation - the judge of the Supreme Court of the Russian Federation N. L. Khlebnikov, from the Investigative Committee under prosecutor's office of the Russian Federation - A. V. Timofeeva, from the Federal Customs Service - A. A. Naumova and L. G. Podgorna, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation
1. According to part one of the article 188 "Smuggling" UK of the Russian Federation smuggling the movement in large size through customs border of the Russian Federation of goods or other objects made in addition to or with concealment from customs control or with fraudulent use of documents or means of customs identification or integrated to non declaration or doubtful declaring is recognized.
Based on the called regulation on January 31, 2007 the investigator of department of inquiry of Sheremetyevsky customs concerning the declarant on this case - the citizen M. A. Aslamazyan brought criminal case upon movement by it through customs border in case of entrance on January 21, 2007 to the Russian Federation of not declared currency in the amount of 9550 euros and 5130 rubles equal in equivalent to 328 685 rubles on the official rate established this day by the Central bank of the Russian Federation. The complaints of the lawyer made for the benefit of M. A. Aslamazyan in the Prosecutor General's Office of the Russian Federation and Golovinsky district court of the city of Moscow about groundlessness of initiation of legal proceedings and about cancellation of the relevant resolution are left without satisfaction.
On case follows from law-enforcement decisions that in case of establishment of such sign of the act provided by part one of article 188 UK of the Russian Federation as the large size determined according to the note to article 169 of this Code as the amount exceeding 250 000 rubles was not subtracted from all amount of the cash imported M. A. Aslamazyan that its part which is resolved by the legislation on currency control and currency exchange control to import without submission of the written customs declaration.
According to the declarant, part one of article 188 UK of the Russian Federation breaks enshrined in Articles 17 (part 1) and 19 (part 1) of the Constitution of the Russian Federation of guarantee of constitutional rights of citizens, including equality of all before the law and court, and also contradicts the principle of legal definiteness proclaimed in the Convention on human rights protection and fundamental freedoms as deprives of the citizen of opportunity reasonably to expect the negative consequences of the behavior coming in case of violation of procedure for movement through customs border of the Russian Federation of such specific subject as foreign currency and (or) currency of the Russian Federation.
Thus, subject of consideration of the Constitutional Court of the Russian Federation of this case is the normative provision of part one of article 188 UK of the Russian Federation as allowing - in interrelation with the note to article 169 of this Code - in case of criminal prosecution for the smuggling committed by movement through customs border of the Russian Federation of not declared or doubtfully declared foreign currency and (or) currency of the Russian Federation in large, i.e. exceeding in equivalent of 250 000 rubles, the size to recognize it that proceeding from all moved amount, including also that its part which is resolved by the law for import to the Russian Federation without declaring to customs authority.
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