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GENERALIZATION of APPEAL COURT of KIEV

of January 1, 2005

Generalization of practice of consideration by courts of the city of Kiev of criminal cases about smuggling (the Art. 201, 305 UK Ukraine 2001) and administrative cases about customs offense according to the new Customs code of Ukraine

When carrying out generalization, proceeding from the materials provided by district courts the questions determined by the programs sent by the Supreme Court of Ukraine were considered.

Criminal liability for smuggling is provided by Art. 201 of the Criminal code of Ukraine:

1. Smuggling, i.e. movement of goods through customs border of Ukraine out of customs control or with concealment from customs control, made in large sizes, and also illicit movement of historical and cultural values, poisonous, strong, radioactive or explosives, weapon and ammunition (except smooth-bore hunting weapon and ammunition to it), and also smuggling of strategically important primary goods concerning which the legislation establishes the corresponding rules of export for borders of Ukraine is punished by imprisonment for a period of three up to seven years with confiscation of objects of smuggling.

2. The same actions made by previous concert by group of persons or person previously convicted for the crime provided by this Article - are punished by imprisonment for a period of five up to twelve years with confiscation of objects of smuggling and with confiscation of property.

Note. Smuggling of goods is considered committed in large sizes if their cost in one thousand and more time exceeds tax-free minimum of the income of citizens.

Criminal liability for smuggling of drugs, psychotropic substances, their analogs or precursors is provided by Art. 305 of the Criminal code of Ukraine:

The first part of this Article determines responsibility for unqualified smuggling of drugs, psychotropic substances, their analogs or precursors, that is their movement through customs border of Ukraine out of customs control or with concealment from customs control. The qualifying essential elements of offense (the p. 2 of the Art. 305) is making of smuggling of drugs, psychotropic substances, their analogs or precursors: 1) repeatedly; 2) by previous concert group of persons;

3) if especially dangerous drugs or psychotropic substances were subject of these actions; 4) if drugs, psychotropic substances, their analogs or precursors in large sizes, and especially qualifying signs were subject of these actions (the p. 3 of the Art. 305):

1) organized group; 2) if drugs, psychotropic substances, their analogs or precursors in especially large sizes were subject of these actions.

According to the note to the Art. 305, big and especially big sizes of drugs, psychotropic substances, their analogs or precursors are determined by specially authorized body of the executive authority in the field of health care.

According to messages of Shevchenkovsky and Dnieper district courts of the city of Kiev, in these courts it is considered on the 1st criminal case according to Art. 201 of UK of Ukraine.

The Shevchenkovsky district court pronounces conviction according to the p. 2 of Art. 201 of UK of Ukraine concerning one person, the Dnieper district court decides the verdict of not guilty according to Art. 201 p.1 of UK of Ukraine concerning one person.

Other courts of the city reported that put this category and according to Art. 305 of UK of Ukraine in 2003 and in the 1st half-year 2004 did not consider.

Information on the specified criminal cases is provided further.

G. S. O. is condemned by sentence of Shevchenkovsky district court on September 10, 2003 on cumulative offenses, the Art. provided by the p. 2 201, 201, the p. 2 of Art. 358 of UK of Ukraine using Art. 69 of UK of Ukraine for 5 years of imprisonment with confiscation of objects of smuggling without confiscation of its property and is exempted by the p. 2 of Art. 15 and the p. 2 of the Art. from serving sentence with testing according to Art. 75 of UK of Ukraine with probation period 2 years. The duty to inform in bodies accurately - criminal system about change of the place of residence is assigned to the convict (case N 1-445/03).

According to G. S. O. sentence it is condemned for the smuggling performed in large sizes by previous concert by group of persons for the finished attempt at smuggling made in large sizes by previous concert by group of persons and for forgery and production of forged seals and forms by previous concert group of persons.

As established court, G. S. O. entered into previous concert with the citizen of the Russian Federation of L. O. V. and persons who are not identified by the investigation - representatives of the Israeli firm for making of smuggling of conditioners.

On April 30, 2002 G. S. O., L. O. V. and persons who are not identified by the investigation - representatives of the Israeli firm kontrabandno moved with motor ship through customs border of Ukraine - customs post Ilyichevsk of the Black Sea regional customs (Ilyichevsk, Odessa region) goods - 890 conditioners of the Polaris brand Split of system of wall type of complex which contained in 4 maritime containers, having provided to customs forgery documents with inveracious data on their customs value: 919811 UAH, and according to the conclusion of ship and merchandising examination - 1179234 UAH are specified, i.e. cost is underestimated by 259422 UAH; the country of the producer is specified England, and actually - China; the firm of the receiver is specified "to V. to." to the address in Moscow, but such firm does not exist at all.

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