18 July, 2024
On 17 July 2024, the First Senate, at the public part of the plenary session, initiated the deliberation of the case upon the constitutional complaint of Mykhailo Kalancha in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Petro Filiuk, reported that the complainant had appealed the Constitutional Court of Ukraine to verify the compliance of Article 472 of the Customs Code of Ukraine (hereinafter, “the Code”) with Articles 41, 48, 61.2 of the Constitution of Ukraine.
The respective article establishes that “failure to declare goods, means of transport for commercial use moved across the customs border of Ukraine, i.e. failure to declare, in the prescribed form, accurate and authentic information (availability, name or title, quantity, etc.) of goods, means of transport for commercial use subject to mandatory declaration when moved across the customs border of Ukraine, shall entail a fine amounting to 100 per cent of the cost of such goods, means of transport with their confiscation” .
The author of the complaint believes that the legislator's establishment in Article 472 of the Code of Ukraine of “an absolutely definite sanction (there is no definition of the lowest and maximum limits of the fine), the impossibility of its reduction and the absence of alternative types of sanctions for the commission of the relevant offence do not allow this provision to be applied taking into account the principle of individualisation of the offender's legal liability”, which contradicts Article 61.2 of the Constitution of Ukraine.
The applicant notes that the penalty established by Article 472 of the Code “turns from a measure of liability into an instrument of deprivation of a person of his/her property, <...>, excessive restriction of the right to an adequate standard of living, which does not meet the requirements of Articles 41 and 48 of the Constitution of Ukraine”. According to the applicant, this is evidenced by the application to him under Article 472 of the Code of “a colossal fine totalling more than UAH 3,000,000.00 <...>, which, given the subsistence minimum for one able-bodied person of UAH 2,589 (as of the day of prosecution), seems at least unfair”.
He also requests to take into account the fact that “a similar article of the Customs Code of Ukraine has already been declared unconstitutional by the Constitutional Court of Ukraine, in particular, Article 485.1 of the Customs Code of Ukraine”.
The judge-rapporteur infromed that in order to ensure a full and objective deliberation of the case and to ensure that the Court delivers a well-reasoned decision, inquiries were sent to a number of bodie of state power and academic institutions to express their opinions on the issues raised in the constitutional complaint.
The First Senate examined the materials of the case in the public part of the plenary session and proceeded to the in-camera part of the plenary session.
The plenary session was attended by the subject of the constitutional complaint, Mykhailo Kalancha, and his representative, lawyer Oleksandr Glukhenkyi.
The video recording of the plenary session is available on the official website of the Constitutional Court of Ukraine in the Section “Archive of video broadcasts of the sessions”.
