On October 26, at the public part of the plenary session in the form of written proceedings the First Senate deliberated the case upon the constitutional complaint of Iryna Yarosh regarding the compliance of the provisions of Article 483.1.2 of the Customs Code of Ukraine (hereinafter referred to as “the Code”) with the Constitution of Ukraine.
At the plenary session the Judge-Rapporteur in the case Iryna Zavhorodnia noted that the subject of the right to a constitutional complaint – Iryna Yarosh – appealed to the Constitutional Court of Ukraine to declare the contested provision of the Code as such that does not correspond to Articles 8.1, 41.1, 41.4, 61.2, and Article 64.1 of the Constitution of Ukraine.
In accordance with Article 483.1 of the Code, movements or actions aimed at moving goods across the customs border of Ukraine with concealment from customs control, i.e. using specially made storage facilities (caches) and other means or methods that make it difficult to find such goods, or by providing one goods of the appearance of others, or with submission to the customs authority as a basis for the movement of goods of forged documents or documents obtained illegally, or those including false information about the name of the goods, their weight (taking into account permissible losses under proper conditions of storage and transportation) or quantity, the country of origin, the sender and/or the recipient, the number of cargo spaces, their markings and numbers, false information necessary to determine the product code according to the Ukrainian classification of goods of foreign economic activity and its customs value - entail the imposition of a fine in the amount of 100 percent of the value of the goods - direct objects of violation of customs rules on confiscation of these goods, as well as goods, vehicles with specially made storage facilities (caches), which were used for the movement of goods - direct objects of violation of customs rules across the customs border of Ukraine.
The applicant believes that the content of the sanction of Article 483.1 of the Code does not correspond to the Constitution of Ukraine, as it “presupposes a disproportionate and unfair punishment, which carries an individual and excessive property burden; such a sanction does not ensure the principle of individualization of punishment, because it does not allow the court to impose a punishment taking into account the severity of the offense committed, the person guilty and the circumstances mitigating and aggravating the punishment; such a sanction does not correspond to the principle of the rule of law, public interests and is a disproportionate interference of the state in the peaceful possession of property”.
The author of the petition emphasises that the sanction of the disputed provision of the Code provides for the mandatory imposition of a fine in the amount of 100 percent of the value of the goods with confiscation of such goods without the possibility of differentiation of punishment, exemption from such punishment if the damage caused is eliminated; does not ensure the principle of individualisation of punishment, because it does not allow the court to impose a punishment taking into account the property status of the person, the amount of damage caused, the circumstances of the case, and the identity of the person guilty.
The First Senate studied the materials of the case in the public part of the plenary session and proceeded to the in-camera part for a decision.
The session was attended by the authorised representative of the subject of the right to constitutional complaint, lawyer Vladyslav Zhelikhovskyi, the Authorised Representative of the Verkhovna Rada of Ukraine, the Head of the Division of Relations with Justice Bodies of the Apparatus of the Verkhovna Rada of Ukraine Arkadii Laptiiev.
