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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of April 2, 2003 No. 7

About court practice on cases on smuggling

Now sharply the criminogenic situation in the field of economy, financial credit system of the state became aggravated, the economic situation of the republic worsened, as explains the growing extents of crime, smuggling and corruption. All this, eventually, leads to discrimination of the undertaken economic, political and social reforms in the republic.

Smuggling is recognized more dangerous crime since it causes extensive damage to economy of the state, established procedure of foreign trade. In recent years scales of smuggling increased by separate types of excise goods and products of the increased demand, their underground production and illegal realization which acquired mass nature and occupy considerable share of goods turnover in the domestic market.

Courts provide, generally the correct hearing of cases of this category. At the same time, in activities of number of courts there are essential shortcomings and omissions.

Sometimes the requirement of the law on comprehensive, complete and objective investigation of the facts of the case therefore some participants of crime are not made responsible is not fulfilled, sources of acquisition of objects of smuggling are not always established. The officials promoting unlawful activity of the commercial structures which are engaged in business activity do not come to light.

Separate courts in case of assignment of punishment not always provide strict fulfillment of requirements of the law on need of the differentiated approach to assignment of punishment taking into account nature and degree of public danger of the committed crime, the identity of the guilty person and the facts of the case mitigating and aggravating responsibility.

In some cases courts do not react to the facts of violation of terms of investigation of cases of this category, and allow red tape.

Courts not always pay sufficient attention to identification of the reasons and conditions promoting making of crimes, and taking measures to their elimination.

For the purpose of elimination of noted shortcomings, in connection with the questions arising at courts in case of application of the legislation providing responsibility for smuggling, the Plenum of the Supreme Court of the Kyrgyz Republic

DECIDES:

1. Draw the attention of courts to special peril of the smuggling causing extensive damage to economy of the state, functioning of the state, commercial or other organizations and that fight against smuggling shall be performed on the basis of strict and steady observance of requirements of the law.

2. By hearing of cases about smuggling courts need to research carefully circumstances of each case, considering that investigation authorities shall take all measures provided by the law for comprehensive, complete and objective investigation of circumstances of the committed crime, and court, keeping objectivity and impartiality to provide to the parties of accusation and protection necessary conditions for realization of their rights to complete research of the facts of the case. Pay special attention on establishment and accountability of all his participants, identification of sources of illegal acquisition of objects of smuggling and channels of their sale.

3. Smuggling is the movement in large size through customs border of the Kyrgyz Republic of the goods or other objects except for specified in part two of Art. 204 of UK of the Kyrgyz Republic 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.

For criminal and legal qualification of smuggling it is important to understand correctly value of all signs included in Art. 204 of UK of the Kyrgyz Republic:

a) according to Art. 3 of the Customs code of the Kyrgyz Republic, the customs area of the Kyrgyz Republic is constituted by the overland territory and airspace over it within which the Kyrgyz Republic has the exclusive jurisdiction.

In the territory of the Kyrgyz Republic there can be free customs zones and free warehouses.

Limits of customs area of the Kyrgyz Republic, and also perimeters of free customs zones and free warehouses is customs border.

b) movement through customs border of the Kyrgyz Respublikieto making of actions for import to customs area of the Kyrgyz Republic or to export from this territory of goods or other objects in any manner, including transfer in the international mailings, use of pipeline transport and power lines. The procedure for movement of goods and other objects through customs border and rules of their declaring are provided by the Customs code of the Kyrgyz Republic.

Explain to courts that:

a) movement of goods in addition to customs control - covers any actions for their import (export) out of the places determined by customs authorities of the Kyrgyz Republic - customs, customs posts and out of the established time of production of customs clearance;

b) movement of goods with concealment from customs kontrolyaispolzovaniye of the hiding places or other methods complicating detection of goods, or giving to one goods of type of others;

c) the movement of goods made with fraudulent use of documents or means of customs identification - representation customs control (body of the Kyrgyz Republic) of the forgery documents received in the illegal way or the documents containing false information, the documents relating to other goods. Fraudulent use of means of customs identification the counterfeit of seals, seals, alphabetic and other marking, drawing the similar signs issued for legal is recognized;

d) the movement of goods integrated to non declaration or doubtful declaring - not statement on the established written, oral or other form of authentic data or the statement of false information on goods, their customs regime and other data necessary for the customs purposes.

4. Subject of crime of smuggling are goods or other objects. According to Art. 17 of the Customs code of the Kyrgyz Republic goods are any personal estate, including currency, currency values, electric, thermal, other types of energy and the vehicle, and also as it is specified in the p. 2 of Art. 204 of UK of the Kyrgyz Republic, arms objects, ammunition, drugs, psychotropic substances and precursors, works of art or other objects listed in this part of Art. 204 of UK of the Kyrgyz Republic concerning which special rules of movement through customs border of the Kyrgyz Republic are established.

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