The First Senate of the Constitutional Court of Ukraine at its plenary session on September 6, 2023 delivered the Decision in the case upon the constitutional complaint of Van Kolk Frederik Johannes regarding the compliance of paragraph 2 of Article 48.6 of the Customs Code of Ukraine (hereinafter referred to as “the Code”) with the Constitution of Ukraine.
The Court declared the disputed provision as conforming to the Constitution of Ukraine (is constitutional) by this Decision.
Van Kolk Frederik Johannes appealed to the Constitutional Court of Ukraine with a request to verify the compliance of paragraph 2 of Article 481.6 of the Code with Articles 41.1, 41.4, 48, 61.2 of the Constitution of Ukraine (constitutionality).
Article 481.6 of the Code stipulates that “exceeding the term of temporary importation of vehicles for personal use and vehicles for commercial purpose into the customs territory of Ukraine by more than thirty days, as well as the loss of these vehicles, including their disassembly, entail imposition of a fine in the amount of ten thousand tax-free minimum incomes of citizens or confiscation of such vehicles”.
The sanction of Article 481.6 of the Code was the subject of constitutional review in this case.
The Constitutional Court of Ukraine draws attention to the fact that in the context of verifying the sanction of Article 481.6 of the Code for compliance with Article 61.2 of the Constitution of Ukraine, which enshrines the principle of individualisation of legal liability, the disputed provision of the Code should be considered in a systematic relationship with other parts of Article 481 of the Code.
The Decision states that the establishment of alternative types of basic administrative fines by contested provision of the Code - a fine in the amount of ten thousand tax-free minimum incomes of citizens or confiscation of a vehicle - enables the court to individualise the administrative fine taking into account the totality of circumstances of the case within the limits of the legally defined sanction and, as a result, implementation of the principle of individualisation of legal liability when bringing a person to administrative liability under Article 481.6 of the Code.
According to the Constitution of Ukraine, the legal positions of the Constitutional Court of Ukraine, the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the European Court of Human Rights, the right to property guaranteed by Article 41.1 of the Constitution of Ukraine is not absolute and may be subject to restrictions. However, the Constitutional Court of Ukraine stresses that any interference with the right to property must be based on the law, be aimed at achieving a legitimate goal and be proportionate, i.e. ensure a “fair balance” between the interests of society and this right.
The Constitutional Court of Ukraine believes that the sanction of Article 481.6 of the Code does not contradict the requirement of legal certainty and provides a lawful interference with the property rights of a person in the understanding of the practice of interpretation of Article 1 of the First Protocol to the Convention by the European Court of Human Rights.
The Constitutional Court of Ukraine notes that the degree of severity of the measure of administrative liability for exceeding the term of temporary importation of vehicles for personal use and vehicles for commercial purpose into the customs territory of Ukraine by more than thirty days, as well as for the loss of these vehicles, including their disassembly, is sufficient to achieve the desired deterrent and punitive effect and prevent future violations of Article 481.6 of the Code.
Taking into account the margin of appreciation granted to the Verkhovna Rada of Ukraine in the field of determining the types of violations of customs rules and liability for committing such violations, the Constitutional Court of Ukraine concludes that the sanction of Article 481.6 of the Code does not allow unjustified and excessive interference with property rights.
That Constitutional Court of Ukraine points out that it follows from the content of paragraph 2 of Article 481.6 of the Code that the legislator determined a fair measure of administrative liability to achieve a legitimate goal, as a result of which the courts can ensure the individualisation of such liability depending on the circumstances of the case, without imposing an individual and excessive burden on the person. Therefore, the sanction of Article 481.6 of the Code creates an appropriate regulatory basis for achieving a “fair balance” between the general interest and the protection of property rights and corresponds to the principle of the rule of law, in particular its requirement such as the principle of proportionality.
In view of the above, the Constitutional Court of Ukraine declared the contested provision of the Code as constitutional.
