Members of the Ukrainian Business Council, which includes 110 business associations of various sectors of the economy, analyzed draft law No. 5420 regarding the criminalization of smuggling and came to a conclusion, that in the proposed to 2 reading the editorial, this project poses significant threats to law-abiding business, since its provisions are formulated in this way, what contain significant corruption risks, and also pose a threat to the activity of primarily legal business and in no way contribute to solving the problem of shadow imports.
First of all, it should be emphasized, that the limit of criminal responsibility under Article 201-3 of the draft law is unreasonably low. In particular, criminal liability is proposed in case of illegal movement of goods across the customs border in the amount of, with a share of more than 1,342 million. Instead, for the qualification of a criminal offense according to the article 212 of the Criminal Code of Ukraine (CCU) «Tax evasion», the limit of criminal liability for tax evasion (which are customs payments) is 4,026 million.
Since such changes relate specifically to responsibility for economic crimes and public danger consists precisely in non-payment of taxes and other payments, then it is advisable to be guided by those similar to the content of the article 212 KKU criteria for determining the threshold of criminal responsibility. More, the issue of the customs value of goods is often the subject of a dispute between the declarant and the customs authority, and therefore cannot act as a threshold for criminal liability.
Significant risks for honest business are also seen in the proposed version of the Notes to Art. 201 CCU, which refers to smuggling, including the submission of documents to the customs authority as a basis for the movement of goods, containing false information about the name of the goods, their weight or quantity, country of origin, sender or 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, which led or could lead to an unlawful exemption from payment of customs payments or a reduction in their amount. In practice, when declaring goods, the customs authority and the declarant often have disputes regarding the determination of the customs value, product code, country of origin, scales, etc. More, proposed revision of the article 201-3 does not imply necessity proving intent to commit a criminal offense.
Such norms of the CCU will give customs officers the opportunity to open criminal proceedings in case of any mistake or disputed situation. Such a situation will not contribute to the effective fight against smuggling, will instead overload the court system, which is an inefficient use of state resources, as well as additional business expenses.
Separate attention should be paid to that, that the provisions of draft law No. 5420 do not specify the subject of criminal liability for the illegal movement of goods. From the current version of the norms, it is not clear who should be accused of committing a crime - the head of the enterprise, declarant, customs broker, carrier etc.
It is also worth noting, that the prosecution of such crimes is determined by the Bureau of Economic Security of Ukraine. During the period of its operation, the BEB works inefficiently and needs a complete reboot (draft law No. 9080), which is a priority for the Ukrainian Business Council. So for now, before the "reboot" of the BEB - it is impractical to grant the BEB powers of pre-trial investigation of a new category of crimes.
Summarizing what has been said, should be noted, what URB members support criminalization exclusively for excise goods with an adequate threshold for criminal prosecution, at the same time consider, that draft law no 5420 needs significant revision in part:
a) actualization of contraband items, narrowing down to certain excise goods - alcohol, tobacco, and also amber;
b) substantiation of the size of the threshold for bringing to criminal liability for "economic" smuggling;
c) provision of qualifying features and adequate justified sanctions for committing a crime;
d) entry into force of the provisions of the draft law after the "reboot" of the Bureau of Economic Security of Ukraine.
In general, it is necessary to take a broader approach to the fight against gray imports, implement effective measures to minimize "jacket" schemes, "parcels", "interrupted transit" etc, to provide information exchange with other countries, and also to ensure the institutional development of relevant bodies and increase the efficiency of their work. Members of the Ukrainian Business Council: expertise, scientists and representatives of business associations unanimous in that, that this draft law should be returned for a repeated first reading in order to improve its quality with the involvement of experts in the field of customs affairs, specialists in the field of criminal law, scientists, the public and representatives of business associations.
We call on people's deputies to take into account the proposals of businesses and experts and to significantly finalize draft law No. 5420, returning it for a second first reading.
Sincerely
Members of the Ukrainian Business Council
