16.06.2022
The Second Senate of the Constitutional Court of Ukraine adopted the Decision in the case upon constitutional complaints of Hevork Barsehian and Nataliia Linenko on compliance of Article 485 of the Customs Code of Ukraine with the Constitution of Ukraine.
Having deliberated the case, the Court paragraph 2 of Article 485 of the Customs Code of Ukraine to be inconsistent with the Constitution of Ukraine.
The authors of the constitutional complaints asked to declare Article 485 of the Customs Code of Ukraine of March 13, 2012 No.4495, according to which the fine is calculated in a fixed amount of 300 percent of the unpaid amount of customs duties, to be inconsistent with the provisions of Articles 41.1, 48, and 61.2 of the Constitution of Ukraine. In their opinion, the lack of determining the minimum and maximum limits of the fine, the impossibility of reducing it and the lack of alternative sanctions for the offense, do not allow to apply this rule given the principle of individualisation of legal liability, which is deemed to be contrary to Article 61 of the Constitution of Ukraine.They also pointed out that the inconsistency of the sanction of Article 485 of the Code with the constitutional foundations of individualisation of legal liability violates the right of a person to own, use and dispose of property established by the Constitution of Ukraine (Article 41), the right of a person to an adequate standard of living for himself/herself and his/her family, including adequate food, clothing, and housing (Article 48).
After the content of the constitutional complaints was examined, the Court found that there are arguments about the inconsistency of the Constitution of Ukraine only with the second paragraph of the specified article of the Code. The impugned provision establishes the sanction for actions aimed at unlawful exemption from customs payments or reduction of their amount, as well as other unlawful actions aimed at evasion from payment of customs duties.
Article 485 of the Code defines administrative liability for actions and (or) inaction aimed at unlawful exemption from customs payments or reduction of their size, as well as other illegal acts aimed at evading customs payments. In the first paragraph of this article of the Code, it is stipulated what actions and (or) inaction may entail a person to be brought to responsibility. In the second paragraph of the same article of the Code, a sanction is defined, a fine in the amount of 300 percent of the unpaid amount of customs payments.
Assessing the impugned provision of Article 485 of the Code for compliance with the principle of individualisation of legal liability, the Court takes into account that this provision establishes responsibility for a number of different unlawful acts, defined in the first paragraph of the same Article of the Code, which may differ in degree of social harmfulness, content, etc. At the same time, the sanction of the article has no alternative options and actually establishes only one type of penalty, a fine, which, moreover, is determined in a constant percentage amount.
The Court noted that the absence of other types of penalties in the impugned provision and the impossibility of changing the percentage amount on which the fine is determined, makes it impossible to implement the principle of individualisation of the legal liability of the violator of customs rules, taking into account the nature of the committed illegal act, the form of guilt, the characteristics of the person guilty, the possibility of compensation for the harm caused, the existence of circumstances mitigating or aggravating liability.
The Court stressed that the need to individualise the size of the fine is urgent in cases where this amount is significant, as a result of which its application may be an excessive interference with a number of constitutional rights of the guilty person.
Consequently, the Court came to the conclusion that the provision of the second paragraph of Article 485 of the Code contradicts Article 61.2 of the Constitution of Ukraine.
Considering the issues of permissible limits of restriction of the property right guaranteed by the Constitution of Ukraine, the Court took into account the case-law of the European Court of Human Rights and the legal positions formulated in its own decisions.
The Court considers that due to the application of the impugned provision of Article 485 of the Code, a fair balance between the requirements of public interest and the protection of a person's property right is not ensured, and this provision itself is a normative basis for excessive interference with the property right guaranteed by the Fundamental Law of Ukraine.
As a result, the Court came to the conclusion that paragraph two of Article 485 of the Code contradicts paragraphs one and four of Article 41 of the Constitution of Ukraine.
In its Decision, the Constitutional Court of Ukraine postponed the termination of the second paragraph of Article 485 of the Customs Code of Ukraine, which was declared unconstitutional, for six months from the date of adoption of the Decision by the Constitutional Court of Ukraine, and also established the Verkhovna Rada of Ukraine to bring the regulations established by the second paragraph of Article 485 of the Customs Code of Ukraine, which is declared unconstitutional, in accordance with the Constitution of Ukraine and this Decision.
