of July 18, 1997 No. 10
About practice of application of the legislation on criminal liability for smuggling
For the purpose of the correct and uniform application of the legislation on penal smuggling, the plenary session of the Supreme Court decides:
1. Economic smuggling, responsibility for which making it is stipulated in Article 234 Criminal Codes of Kazakhstan (further - UK), is understood as illicit movement of goods or other values and objects through customs border of the Eurasian Economic Union. Under smuggling of the objects or objects withdrawn from circulation which address is limited responsibility for which making is stipulated in Article 286 UK, illicit movement of such goods through customs border of the Eurasian Economic Union and (or) Frontier of the Republic of Kazakhstan is understood.
The circumstances delimiting penal smuggling from the smuggling provided by the Code of the Republic of Kazakhstan about administrative offenses and also from the customs offenses integrated to movement of goods and objects through customs border are the large amount of smuggling or movement of objects concerning which special rules are established.
Concepts of customs and state borders are determined in the Code of the Republic of Kazakhstan "About customs regulation in the Republic of Kazakhstan" and the Law of the Republic of Kazakhstan of January 16, 2013 No. 70-V "About Frontier of the Republic of Kazakhstan".
Instruction in procedural investigative and court documents of large, especially large size and other qualifying smuggling signs, including special rules of movement concerning certain objects, is obligatory.
2. Illicit movement of goods or other values and objects can be made as by their import to customs area, and export them from this territory.
It is necessary to understand movement of objects of smuggling as import and export in any manner (transportation or transfer by means of any kind of transport, including by air, transfer by mail, transfer in hands, in clothes pockets, in the form of hand luggage, etc.).
3. Illicit movement is performed as at the check points and other places determined by the legislation for crossing of border (under the guise of legal movement), and out of these places (illegal way).
The criminal offense is considered ended:
- when importing and exporting performed illegally - from the moment of direct crossing of border;
- when importing performed under the guise of legal movement - from the moment of registration of the customs declaration, and concerning objects for which special rules are established, - from the moment of the end of procedure of border control;
- when exporting performed under the guise of legal movement - from the moment of registration of the customs declaration.
In cases of movement of goods at the check points and other places determined by the legislation, but in unspecified working hours of customs authorities the criminal offense is considered ended from the moment of crossing of border.
4. From the objective party smuggling is characterized:
concealment from customs control of goods or other values and objects;
their movement in addition to customs control;
their non declaration or doubtful declaring;
fraudulent use of customs and other papers or means of customs identification.
Instruction of obviously false information in the statement for release of goods before submission of the declaration on goods or in the statement for making of transactions concerning temporarily exported vehicles of international delivery which are the goods placed under the procedure of temporary import (admission), including with submission of invalid documents, counterfeit or containing obviously false (false) information.
For recognition of such actions criminal approach of any harmful effects is not required. In this regard in case of illicit movement of goods or other objects in large size through customs border of the Eurasian Economic Union on customs procedure of "customs transit" the deeds should be qualified under article 234 UK regardless of purpose of goods or objects for their use in the territory of state members of the specified union (internal transit), or the third countries (external transit).
5. Concealment from customs control consists in concealment of goods or other values and objects, use in case of their transportation of the hiding places or other methods complicating their detection or in giving to one objects of type of others.
Movement of objects of smuggling in addition to customs control consists in their transfer and transportation out of the customs posts, check points and other places determined by the legislation and customs authorities of the Republic of Kazakhstan for carrying out customs declaring or out of time established for its production.
Fraudulent use of customs and other papers or means of customs identification assumes presentation to customs authorities, and also persons exercising border control, invalid, the received in the illegal way, counterfeit, and also containing false data documents, use of forged seals, seals, stamps and other similar means of customs identification or presentation of the authentic means of identification relating to other objects.
The non declaration or doubtful declaring is statement the customs applicant to customs authority with use of the customs declaration of false information on goods (the name, cost, quantity, weight, etc.) about the chosen customs procedure and (or) other data necessary for the customs purposes, or failure to carry out of obligation of submission of such statement with the specified data on goods in case of production of customs declaring.
6. Objects of smuggling are understood as any movable objects of material world, including currency, currency values, electric, thermal or other types of energy and vehicles.
Also cultural values which are important art, scientific, historical and archaeological property of the people - works of art, objects of old times and other objects having the specified value, intellectual property items, animal species and the plants which are under the threat of disappearance, their parts and derivatives (derivative) concern to them. Responsibility for illicit movement through customs border of the Eurasian Economic Union of the specified, and also other, not withdrawn from circulation objects or objects which address is not limited, (for example, food, clothes, footwear, perfumery goods, etc.) is stipulated in Clause 234 UK.
Illegal export of cultural values and objects of national cultural property out of limits of the Republic of Kazakhstan or their non-return to the Republic of Kazakhstan, with movement through frontier to other state of the Eurasian Economic Union is qualified as regards 1-1 article 203 UK.
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