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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of March 29, 2018 No. 1

About some questions of consideration by courts of economic and civil cases with participation of customs authorities

(as amended of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus of 29.09.2022 No. 6)

Having discussed results of studying and generalization of court practice, for the purpose of timely permission courts of cases with participation of customs authorities and ensuring uniform application of the customs legislation Plenum of the Supreme Court of the Republic of Belarus decides:

1. Draw the attention of courts that the correct and uniform application of the customs legislation is important guarantee of observance of established procedure and conditions of movement of goods through customs border of the Eurasian Economic Union, protection of the rights of persons which interests are infringed by decisions, actions (failure to act) of customs authorities or their officials, law enforcement in the field of customs legal relationship.

2. By hearing of cases with participation of customs authorities courts should be guided by the Constitution of the Republic of Belarus, the International convention about simplification and harmonization of customs procedures of May 18, 1973, the International convention about the Harmonized commodity description and coding system of June 14, 1983, the Agreement on the Eurasian Economic Union of May 29, 2014, the Agreement on the Customs code of the Eurasian Economic Union of April 11, 2017, the Tax code of the Republic of Belarus (further - the Tax Code), the Law of the Republic of Belarus of January 10, 2014 No. 129-Z "About customs regulation in the Republic of Belarus" (further - the Law on customs regulation), other regulatory legal acts regulating customs legal relationship.

3. Explain to courts that according to Articles 41 and 42 of the Economic Procedure Code of the Republic of Belarus (further – HPK), to courts of law the following categories of cases with participation of customs authorities are subordinated to Articles 37 and 335 of the Code of civil procedure of the Republic of Belarus (further – GPK):

about recognition invalid fully or partially decisions of customs authority;

about recognition illegal actions (failure to act) of customs authority or its official;

about return of excessively collected amount of customs and other payments, penalty fee, percent;

about indemnification (harm), caused owing to illegal decision, actions (failure to act) of customs authority or its official;

about contest of executive or other document on which collection is made in indisputable procedure;

about collection of customs payments, other payments which collection is assigned to customs authorities, penalty fee, percent at the expense of property of the payer (other obliged person).

Courts have the right to consider also other categories of cases with participation of customs authorities if such cases by legal acts are referred to jurisdiction of courts of law.

Cognizance of cases to the district (city) courts and courts considering economic cases is determined by general rules based on regulations of HPK and GPK taking into account the subject list of participants and nature of the arisen disputable legal relationship.

4. Courts should consider that decisions of customs authorities, actions (failure to act) of customs authorities or their officials have the right to appeal any person if believes that the appealed decisions, actions (failure to act) contradict the customs legislation and violate its rights or legitimate interests or illegally assign to it any obligations.

By the general rule according to Item 1 of article 261 of the Law on customs regulation person has the right to address for judicial protection irrespective of whether it appealed the decision, actions (failure to act) of customs authority or its official in higher customs authority.

To officials of customs authorities, actions (failure to act) of which can be appealed judicially, the workers holding established posts in the State Customs Committee of the Republic of Belarus, customs, public institutions which are a part of the system of customs authorities and the having personal ranks (Item 1 of article 244 of the Law on customs regulation) belong.

5. Draw the attention of courts that the legality proof obligation, and in stipulated by the legislation cases and justification of actions of customs authority or its official, compliance to acts of the legislation of the decisions made by them is assigned to the relevant customs authority or the official. At the same time the applicant has the right to produce to court the evidence and other materials.

At the same time courts should consider requirements of the Directive of the President of the Republic of Belarus of December 27, 2006 No. 2 "About debureaucratization of the state apparatus and improvement of quality of ensuring life activity of the population" (The national register of legal acts of the Republic of Belarus, 2007, No. 2, 1/8173; The National legal Internet portal of the Republic of Belarus, 25.03.2015, 1/15711) and in case of ambiguity or illegibility of instructions of the legal act to make decisions proceeding from the maximum accounting of interests of citizens.

The courts considering economic cases in case of assessment of nature of relations of customs authorities with legal entities and individual entrepreneurs should proceed from presumption of conscientiousness of subjects of managing (paragraph two of Item 1 of the Decree of the President of the Republic of Belarus of November 23, 2017 No. 7 "About development of entrepreneurship" (The national legal Internet portal of the Republic of Belarus, 25.11.2017, 1/17364)).

6. It must be kept in mind that form of appeal to the court, considering economic cases, in case of appeal of decisions of customs authorities, actions (failure to act) of customs authorities or their officials the statement is (the paragraph third parts one of article 7 HPK). Such statements are subject to consideration according to the procedure, HPK provided by Chapter 25.

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