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DETERMINATION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of May 12, 2005 No. 168-O

According to the claim of the citizen of the Republic of Estonia Gryunvald Mart to violation of its constitutional rights separate provisions of Articles 283, 319 and 320 Customs codes of the Russian Federation

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, judges N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, G. A. Zhilin, S. M. Kazantsev, M. I. Kleandrov, A. L. Kononov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, N. V. Seleznyov, A.YA. Plums, O. S. Hokhryakova, B. S. Ebzeev, V. G. Yaroslavtsev,

having heard the conclusion of the judge G. A. Zhilin who was carrying out preliminary studying of the claim of the citizen M. Gryunvald based on article 41 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation" in plenary meeting established:

1. On November 26, 2003 at the citizen of the Republic of Estonia M. Gryunvald during its stay the car which is earlier placed under special customs regime - temporary import of goods by the foreign physical person with full conditional release from payment of import customs duty was in the territory of the Russian Federation stolen. Investigating bodies of the city of Sankt-Petersburg M. Gryunvald was recognized as the victim on the criminal case brought upon plunder at it of the vehicle on which pretrial investigation was suspended on February 5, 2004 in connection with not establishment of person which is subject to attraction as the person accused.

The Kingisepp customs, having refused to determination of March 11, 2004 excitement concerning M. Gryunvald of case on administrative offense for not export at the scheduled time from customs area of the Russian Federation of earlier imported vehicle, nevertheless on June 4, 2004 made the decision on collection from it the import customs duty and penalty fee on total amount of 626802 rub of 20 kopeks. The Kingisepp city court where M. Gryunvald appealed the decision of customs authority, the decision of July 26, 2004 left without change determination of judicial board on civil cases of the Leningrad regional court of October 6, 2004 refused satisfaction of its claim.

2. In the Russian Federation all patterns of ownership, including private are recognized and protected similarly, and advantage of the personality and the right of the victims from crimes and abuses of the power are protected by the state (Article 8, part 2; Article 19, parts 1 and 2; Article 21, part 1; Article 35, part 1; article 52 of the Constitution of the Russian Federation). Owing to these constitutional provisions on the state the obligation lies to prevent and stop in accordance with the established procedure any infringement of the personality capable to do it harm, including property, to take effective measures to recovery of the rights of the victims from crimes (The resolution of the Constitutional Court of the Russian Federation of April 24, 2003 N 7-P on the case of check of constitutionality of provision of Item 8 of the resolution of the State Duma "About the announcement of amnesty in connection with the 55 anniversary of the Victory in the Great Patriotic War of 1941-1945").

As appears from the provided materials, customs authority and court in case of assignment on M. Gryunvald of obligation on customs duty payment and penalty fee proceeded from provision of Item 6 of Article 283 of the Customs code of the Russian Federation according to which the return export of temporarily imported goods, including vehicles, can not be performed if they are seriously damaged owing to accident or force majeure. Plunder of the vehicle as not belonging to such circumstances, according to customs authority and court, according to the given provision in system communication with provisions of the paragraph of the third subitem 1 of Item 2 of Article 319, of Items 1 and 2 of Article 320 of the Customs code of the Russian Federation does not exempt the customs applicant from export obligation at the scheduled time from customs area of the Russian Federation of temporarily imported vehicle, violation of fixed term attracts obligation of payment of import duty regardless of fault availability.

Meanwhile plunder of the vehicle (unlike damage) in general excludes possibility of its export from customs area of the Russian Federation as in such situation the vehicle at the customs applicant is absent actually. At the same time assignment of obligation on customs duty payment and penalty fee for the absent vehicle which was disposed from ownership of the customs applicant in spite of himself takes form of property responsibility for non-compliance with requirements about obligatory export of temporarily imported goods (Item 1 of Article 214 of the Customs code of the Russian Federation) conferred on the victim for the fact of crime execution concerning its property puts it in unequal position with other participants of customs legal relationship exempted from customs duty payment in connection with temporary import of the vehicle. In essence, the expiration of the term established for temporary import because of absence at the evacuation of the kidnapped person which was injured possibilities of the vehicle at it in itself is considered as the basis of assignment of such responsibility. According to legal line item of the Constitutional Court of the Russian Federation expressed in the Resolution of April 27, 2001 N 7-P on the case of check of constitutionality of number of provisions of the Customs code of the Russian Federation, responsibility for customs offense cannot be conferred without fault availability, in whatever form it was shown.

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