of April 27, 2017 No. 12
About court practice on cases on smuggling
For the purpose of ensuring uniform application by courts of regulations of the penal statute about responsibility for smuggling (Article 200. 1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation (further - the Criminal Code of the Russian Federation), and also in connection with the questions which arose at courts, the Plenum of the Supreme Court of the Russian Federation, being guided by article 126 of the Constitution of the Russian Federation, articles 2 and 5 of the Federal constitutional Law of February 5, 2014 No. 3-FKZ "About the Supreme Court of the Russian Federation", decides to make the following explanations:
1. By consideration of criminal cases about smuggling courts need to consider that legal regulation of the customs relations in the Russian Federation is performed according to international treaties and the legislation of the Russian Federation on customs regulation.
In particular, the Agreement on the Eurasian Economic Union of May 29, 2014 (further - the Agreement and the Union respectively) and the Customs code of the Eurasian Economic Union (further - shopping Mall EurAsEC), and also other international agreements signed by the Russian Federation with state members of the Union, other states is among international treaties (for example, the Agreement on the single principles and rules of drug circulation within the Eurasian Economic Union of December 23, 2014).
Taking into account provisions of Item 2 of article 101 of the Agreement under used in Articles 200. 1, 200.2, 226.1 and 229.1 the Criminal Code of the Russian Federation the terms "customs border of the Customs union within EurAsEC" ("customs border of the Customs union"), "Frontier of the Russian Federation with state members of the Customs union within EurAsEC" it is necessary to understand respectively "customs border of the Eurasian Economic Union" (further - customs border), "Frontier of the Russian Federation with state members of the Eurasian Economic Union" (further - frontier).
2. Courts should take into account that procedure for movement through customs border or frontier of goods and other objects, and also prohibitions and (or) restrictions connected with such movement along with the legislation of the Russian Federation (about customs regulation, about Frontier of the Russian Federation, about currency control and currency exchange control, about export control and to others) are established by the right of the Union (articles 6 and 32 of the Agreement).
Including decisions and orders of permanent regulating authority of the Union - the Eurasian economic commission, accepted within its powers belong to the right of the Union (for example, the decision of Board of the Eurasian economic commission of April 21, 2015 No. 30 "About measures of non-tariff regulation").
By hearing of cases about smuggling of cultural values courts should consider that the list of cultural values concerning which the allowing procedure for export from customs area of the Union is established rules of their export from the Russian Federation to other states which are not state members of the Union are determined by decisions of Board of the Eurasian economic commission.
3. In case of the solution of question of availability in actions of person of signs of the crime components provided by Articles 200. 1, 200.2, 226.1 and 229.1 of the Criminal Code of the Russian Federation, to courts it is necessary to establish accessory illegally of the moved goods or other objects to the smuggling objects listed in these Articles.
If in case of establishment of accessory illegally of the moved goods or other objects to objects of smuggling special knowledge are required, then courts shall have the corresponding expert opinions or specialists.
4. In case of determination of the size of cost illegally moved through customs border or frontier of objects of smuggling to courts it is necessary to proceed from the state regulated prices if those are established; in other cases the size of the specified cost is determined based on market value of the goods except for moved with physical person through customs border of goods for private use concerning which the customs value determined according to Chapter 37 of shopping Mall EurAsEC is used. At the same time it is necessary to take the precepts of law allowing not to consider that part of cost into account it is illegal the moved goods which is permitted to movement without declaring and (or) it was declared (for example, the note 3 to Article 200. 1, the note 2 to article 200.2 Criminal Code of the Russian Federation).
In the absence of data on the goods price its cost is determined based on the expert opinion or the specialist.
5. Movement through customs border or frontier of goods and other objects consists in making of actions for import respectively to customs area of the Union or the territory of the Russian Federation or to export from these territories of goods or other objects in any manner.
Through customs border it is necessary to understand movement of goods or other objects out of the established places as illicit movement of goods or other objects or in unspecified working hours of customs authorities in these parts, or with concealment from customs control, or with doubtful declaring or non declaration of goods, or with use of the documents containing false information on goods or other objects, and (or) with use counterfeit or belonging to other goods or other objects of means of identification.
In case of factual determination of illicit movement of goods or other objects through frontier courts need to consider that legal regulation of import or commodity exportation and other objects from the territory of one state member of the Union on the territory of other state member of the Union has the features.
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