Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
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Vol. 39, Nº 70 (2021), 800-814
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 22/07/2021 Aceptado el 01/09/2021
Smuggling or violation of customs
rules: actual questions of application of
administrative and criminal liability
DOI: https://doi.org/10.46398/cuestpol.3970.48
Vadym Pidgorodynskyi *
Dmitriy Kamensky **
Inna Bolokan ***
Tamara Makarenko ****
Hanna Samilo *****
Abstract
The article deals with the peculiarities of the application of
legal liability for commercial contraband in accordance with
the current legislation of Ukraine. In particular, the authors of
the article investigate the feasibility of criminalization of the
smuggling of a wide range of goods, and not only withdrawn from
the circulation of things and forests, as recorded in the Criminal Code of
Ukraine at this moment. In addition to a thorough analysis of the current
legislation of Ukraine, the authors carried out a comparative analysis of
Ukrainian legislation with the legislation of foreign countries, which
helped to objectively assess the state of the studied issues in Ukraine. The
methodology of the study includes general scientic methods, among which
the methods of analysis and synthesis should be noted, as well as special-
legal methods, among which it is necessary to distinguish system-functional,
and comparative methods. As a result of the study, the authors concluded
that the criminalization of commercial smuggling (in connection with
additional corruption risks and an increase in law enforcement agencies)
is inappropriate. Thus, it is proposed to leave the current legislation of
* Doctor of Legal Sciences, Assosiate Professor of Criminal law Department, Vice-rector for educational
and innovative development and economic activity of National University «Odesa Law Academy».
ORCID ID: https://orcid.org/0000-0001-8133-6486. Email: Vnp.odessa@gmail.com
** Doctor of Law, Department of Legal Courses, Berdyansk State Pedagogical University, Berdyansk,
Ukraine. ORCID ID: https://orcid.org/0000-0002-3610-2514. Email: dm.kamensky@gmail.com
*** Doctor of Legal Science, Associate Professor of Civil Law Department of Zaporizhzhia National
University (Zaporizhzhia, Ukraine). ORCID ID: https://orcid.org/0000-0003-1868-7552. Email:
innabolokani@gmail.com
**** Associate Professor, Dean of the Faculty of Humanities and Economics of Berdyansk State Pedagogical
University. Berdyansk, Ukraine. ORCID ID: https://orcid.org/0000-0003-2893-7789. Email:
tamara_makarenko@ukr.net
***** Ph. D., Associate Professor of the Department of Constitutional, administrative and labor law at
Zaporizhzhia Polytechnic National University, Zaporizhzhia, Ukraine. ORCID ID: https://orcid.
org/0000-0001-9493-8013. Email: Samiloann@gmail.com
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CUESTIONES POLÍTICAS
Vol. 39 Nº 70 (2021): 800-814
Ukraine in the investigational sphere in the current state and do not make
any changes to it.
Keywords: smuggling; crime; oense; customs rules; criminalization.
Contrabando o violación de las normas aduaneras:
temas de actualidad de responsabilidad administrativa y
penal
Resumen
El artículo trata sobre las peculiaridades de la aplicación de la
responsabilidad legal por el contrabando comercial de acuerdo con la
legislación vigente de Ucrania. En particular, los autores del artículo
investigan la viabilidad de tipicar como delito el contrabando de una
amplia gama de bienes, y no solo los retirados de la circulación de cosas
y bosques, como consta en el Código Penal de Ucrania en este momento.
Además de un análisis exhaustivo de la legislación actual de Ucrania, los
autores llevaron a cabo un análisis comparativo de la legislación ucraniana
con la legislación de otros países, lo que ayudó a evaluar objetivamente
el estado de las cuestiones estudiadas en Ucrania. La metodología del
estudio incluye métodos cientícos generales. Como resultado del estudio,
los autores concluyeron que la tipicación como delito del contrabando
comercial (en relación con riesgos adicionales de corrupción y un aumento
de los organismos encargados de hacer cumplir la ley) es inapropiada. Por
lo tanto, se propone dejar la legislación actual de Ucrania en la esfera de
investigación en el estado actual y no realizar ningún cambio en ella.
Palabras clave: contrabando; delito; infracción; normas aduaneras;
criminalización.
Introduction
The issue of application of legal liability for movement through the
customs border of goods in violation of the current customs legislation has
acquired a special relevance in Ukraine (in connection with the submission
to the Verkhovna Rada of Ukraine of Draft Law No. 5420 dated April 4,
2021 “On Amendments to the Criminal Code of Ukraine and Criminal
Procedural Code of Ukraine on the criminalization of smuggling of goods
and excisable goods, as well as an inaccurate declaration of goods”). The
specied document proposes to criminalize the acts for which administrative
responsibility is foreseen. It is about the smuggling of goods, smuggling of
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Vadym Pidgorodynskyi, Dmitriy Kamensky, Inna Bolokan, Tamara Makarenko y Hanna Samilo
Smuggling or violation of customs rules: actual questions of application of administrative and
criminal liability
excisable goods in signicant, large amounts, or previously committed by a
conventional person, according to a prior conspiracy using power, an ocial
position, or an organized group, as well as a special relapse and repetition;
Inaccurate declaration of goods in signicant, large, especially large
amounts, or committed by a prior conspiracy with a customs authority, or
assistance in any form an ocial of the customs authority to commit such
acts with the use of power or ocial position, as well as special recurrence
and repetition.
The subject matter of the article is particularly relevant in view of
the wide discussion in the domestic society regarding the need for the
criminalization of smuggling, which began in connection with the submission
to the Verkhovna Rada of Ukraine of the draft law on the criminalization
of smuggling. The said draft law not only expanded the objective side of
the crime with smuggling but also proposed to consider smuggling even
preparation for the actual exercise of the illegal act. These proposals are
controversial and require additional scientic comprehension. The draft
law also proposes to clarify the composition of the existing articles on the
smuggling of narcotic drugs (Article 201 of the Criminal Code of Ukraine
(Law No. 2341-III, 2001)) and for the smuggling of timber (Article 201-1
of the Criminal Code of Ukraine (Law No. 2341-III, 2001)), recognizing a
qualifying feature of “moving actions” instead of “moving”.
Interestingly, the actions mentioned in the draft law were previously
considered crimes and contained in the Criminal Code of Ukraine, but in
2011 were decriminalized. As of this time, smuggling is considered to be
moved through the customs border of Ukraine of cultural values, poisonous,
potent, explosives, radioactive materials, weapons, and ammunition
(except smooth-bodied hunting weapons and combat supplies to it), as well
as special technical means of non-read information.
All other acts are considered to be oenses, namely – violations
of customs rules, and the persons who commit them are subject to
administrative responsibility. So, is it appropriate for the criminalization of
commercial smuggling in modern conditions in Ukraine?
1. Theoretical Framework or Literature Review
As to the state of development of problems associated with smuggling,
there are quite a large number of authors both in Ukraine (Kuryliuk, &
Khalymon, 2020; Kulish, Chumak, Chernysh, Khan, & Havrik, 2020) and
in the world in general are engaged in these issues. However, if there are
more relevant issues of commercial smuggling or wood smuggling, then
for other countries more urgent can be problems of smuggling of narcotic
drugs, excisable goods or, even people.
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Thus, Kemp and Galemba (2020) studied he theoretical and practical
problems of smuggling are investigated at the fundamental level. The
authors conclude that smuggling is a complex phenomenon. In particular,
the transportation of certain goods across the border may be legal in
one country and a crime in another. At the same time, illegal cross-
border trade is not always immoral, and legal trade is not always moral.
However, developed countries are trying to shape global trade policy
based on the principles of humanism and democracy. Global trade policy
is formed through the conclusion of trade agreements, the introduction of
international nancial norms or trade regimes.
Moreover, Icduygu and Toktas (2020) in the article “Human Smuggling
and Tracking” explore the problem of smuggling of human resources
across the borders of several countries in the Middle East. The article
thoroughly considered the latest trends in such smuggling, the principles
of formation and functioning of organized criminal groups engaged in such
smuggling, as well as the peculiarities of illegal crossing of the border with
illegal migrants and refugees, are investigated.
Grodetsky (2021) examines the advantages and disadvantages of a
new draft law on the criminalization of smuggling in Ukraine. The article
carefully analyzes the current and future legislation of Ukraine in the study
area. The author of the article concludes that criminalization of smuggling
is necessary, but notes that the draft law on amendments to existing
legislation needs to be nalized.
Further, Mir Akmam and Yuslan (2019) consider the features of crimes
related to smuggling, in Indonesia. The article concludes that the legislation
of this country should be improved to reduce smuggling ows and replenish
the country’s budget.
Finally, Shustrova and Bohatyrova (2021) examine the current legislation
of Ukraine on smuggling and oers their vision for its improvement. Among
other things, the article suggests criminalizing the smuggling of valuable
and rare species of animals and plants and endangered animals and plants,
microbiological or other biological agents or toxins, transplants or human
tissues, etc., and certain types of smuggling in the eld of transport of goods
and materials.
Despite the large number of scientic and journalistic studies on the
qualication of smuggling, the purpose of further work should be a deeper
analysis of the consequences of criminalization of smuggling for the
domestic economy.
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Vadym Pidgorodynskyi, Dmitriy Kamensky, Inna Bolokan, Tamara Makarenko y Hanna Samilo
Smuggling or violation of customs rules: actual questions of application of administrative and
criminal liability
2. Methodology
The methodology of the study includes general scientic methods,
among which the methods of analysis and synthesis should be noted, as
well as special-legal methods, among which it is necessary to distinguish
system-functional, formal-logical, and comparative methods.
So, the method of analysis (as a method of studying an object in a set of
components of its components) allowed to carefully examine the signs of
smuggling, as an administrative oense and as a criminal oense, that is –
a crime. In particular, this method allowed to analyze the elements of the
conscation composition to which the subjects belong to the subjects, the
subject, the subjective side, and the objective side of the oense.
Further, the method of synthesis (as opposed to the method of analysis
of knowledge of objective reality) lets to combine dierent scientic
approaches to solving the problem of criminalization of smuggling and
to conclude that it is inexpedient to criminalize economic (commodity)
smuggling, which should remain an administrative oense.
The system-functional method (as a method of studying social phenomena
and processes in the form of structurally dismembered integrity, where
each element of the structure has a specic functional purpose) allowed
to study the current state of aairs in the movement of goods across the
state border of Ukraine and to conclude due to the inability of domestic law
enforcement agencies to qualitatively investigate a large array of crimes in
the area under investigation, which could lead to increased corruption risks
and the complete collapse of customs in Ukraine.
The formal logical method permitted to thoroughly investigate the
domestic administrative and criminal legislation aimed at regulating the
studied relations.
Finally, the comparative method provided a careful analysis of foreign
experience in classifying oenses as smuggling and the application of
administrative and criminal liability to violators of customs regulations.
3. Results and Discussion
To draw objective conclusions about the feasibility of criminalizing
smuggling in Ukraine, we should rst thoroughly analyze the current
legislation in the eld.
Thus, at the moment, commodity smuggling is recognized as an
administrative oense, namely – a violation of customs regulations.
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The composition of the violation includes signs that characterize the
external act of behavior of the person, its direction, consequences, signs
that characterize the oender, and his mental attitude to the oense.
Signs of violation of customs rules are grouped into four groups
(elements) that characterize:
• object of violation of customs rules;
• the objective side of the violation of customs rules;
• subject of a violation of customs rules;
• the subjective side of the violation of customs rules.
All these elements of the violation of customs regulations are inextricably
linked. The presence of these elements is mandatory for the qualication of
a specic act as a violation of customs regulations. If at least one of them is
missing or does not meet the properties provided by the relevant provision
of the Customs Code, this act is not a violation of customs regulations.
The object of violations of customs rules is public relations, which are
protected by law and which as a result of the encroachment is or may be
harmed, as well as what the encroachment is aimed at.
The objective side of violations of customs rules is a set of legally
prescribed features that characterize the external manifestation of the
act that encroaches on the objects of legal protection, and the objective
conditions of this encroachment.
Citizens who have reached the age of 16 (at the time of committing
such an oense) may be subject to administrative liability for violation of
customs rules, and ocials of these enterprises may be subject to violations
of customs rules by enterprises.
The subjective side of violations of customs rules is characterized by the
mental attitude of the person to commit the oense:
• guilt – the mental attitude of a person to the act or omission provided
by the Customs Code of Ukraine (Law No. 4495-VI, 2012), and their
consequences, expressed in the form of intent or negligence;
• motive – the inner motivation of the person who created the
psychological preconditions for the commission of the oense, and;
• goal – the consequence that a person seeks to achieve by committing
an oense.
Administrative liability for violations provided for by the Customs
Code arises if these oenses do not entail criminal liability. Prosecution
for violation of customs rules does not release these persons from the
obligation to pay duties and other taxes and fees.
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Vadym Pidgorodynskyi, Dmitriy Kamensky, Inna Bolokan, Tamara Makarenko y Hanna Samilo
Smuggling or violation of customs rules: actual questions of application of administrative and
criminal liability
The following penalties may be imposed for violation of customs
regulations:
• warning;
• ne, and;
• conscation of goods.
Among all types of penalties, warnings and nes are used only as
the main type of penalty, and conscation can be used as the main and
additional. It should be noted that the application of an additional type of
penalty without the main is not allowed. Therefore, if conscation is an
additional type of penalty and the ne is the main one (and if the ne is
not applied within two months from the date of violation of customs rules,
and, in case of a continuing oense, within two months from the date of its
detection or one month from the date of closing the criminal case), if the act
constitutes an administrative oense – then conscation as an additional
type of penalty in this case also can not be applied.
Smuggling is the movement across the customs border of Ukraine
outside customs control or with concealment from customs control of
cultural property, poisonous, potent, explosives, radioactive materials,
weapons, and ammunition (except for smooth-bore hunting weapons and
ammunition), and specialized equipment covert receipt of information.
The mechanism for classifying actions that fall under the denition of
“smuggling”.
According to Article 201 of the Criminal Code of Ukraine, the importation
of contraband is punishable by imprisonment for a term of three to seven
years with conscation of contraband. If smuggling is imported by prior
conspiracy by a group of persons or a person previously convicted of a crime,
or an ocial using ocial position, - shall be punishable by imprisonment
for a term of ve to twelve years with conscation of contraband and
conscation of property.
In 2018, the domestic legislator supplemented the Criminal Code of
Ukraine (Law No. 2341-III, 2001) with Article 201-1, which also provides
for criminal liability for forest smuggling.
In addition, Article 305 of the Criminal Code (Law No. 2341-III, 2001)
also qualies the movement across the customs border of Ukraine out of
customs control or with concealment from customs control of narcotic
drugs, psychotropic substances, their analogues or precursors, or falsied
drugs also qualies as smuggling.
It should be remarked that the most common violations related to the
movement of goods across the customs border are:
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• violations caused by the deliberately incorrect determination of
the quantity, quality, or customs value of goods (many companies
underestimate the quantitative, qualitative, and cost indicators of
goods to reduce the number of customs duties);
• violations related to the dishonest issuance of certicates of goods
to obtain customs preferences that apply to goods from certain
countries;
• ctitious transit (violations related to the norm of Ukrainian
legislation, according to which the transit of goods through the
territory of Ukraine goods are exempt from import duties; in
practice, a large number of goods declared as transit and exempt
from customs duties remain in Ukraine for sale).
Interestingly, in 2011 the decriminalization of smuggling was explained
by the need to bring Ukrainian legislation in line with European standards.
In addition, the decriminalization of smuggling was explained by the need
to optimize budget expenditures.
In particular, the pre-trial investigation in criminal cases of smuggling
of goods involved signicant budget funds, which was associated with paid
storage of material evidence, expert research, and other procedural actions.
The requirements of the criminal procedure legislation stipulated the
conduct of a long pre-trial investigation, necessary to gather the evidence
base, identify the perpetrators of the crime, their location, etc. In this case,
the goods (recognized as material evidence) were stored in the case le and
could not be transferred to state revenue until the cases are resolved by the
courts. In addition, the analysis of the jurisprudence of smuggling cases
shows that the vast majority of persons convicted of smuggling were not
sentenced to actual imprisonment, judges decided to release them from
serving a sentence with probation and a ne. Partial decriminalization of
the analyzed acts led to the fact that moving across the customs border
outside customs control or with concealment from customs control of
goods, regardless of their value or category began to qualify as a violation
of customs rules under Art. 351 (“Actions aimed at moving goods, vehicles
across the customs border of Ukraine outside customs control”) and Art.
352 “Actions aimed at moving goods across the customs border of Ukraine
with concealment from customs control” of the Customs Code of Ukraine
(Law No. 4495-VI, 2012).
The attribution of minor smuggling to administrative oenses is in
line with European practice, in particular, the provisions of the Geneva
Convention on the Contract for the International Carriage of Goods by Road
(United Nations, 1956) and the Kyoto Convention on the Simplication
and Harmonization of Customs Procedures (United Nations, 2002), which
were signed by Ukraine.
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Vadym Pidgorodynskyi, Dmitriy Kamensky, Inna Bolokan, Tamara Makarenko y Hanna Samilo
Smuggling or violation of customs rules: actual questions of application of administrative and
criminal liability
In particular, following paragraphs 20 and 21 of Special Annex H, Section
1 of the International Convention on the Simplication and Harmonization
of Customs Procedures, if a customs oense is found to be insignicant
during customs clearance to be given the opportunity of administrative
settlement of this oense by the customs authority that detected it.
In general, EU recommendations for partner countries in the eld of
customs are set out in EU (Customs Blueprints (European Commission,
1998)) by dening certain standards:
• comprehensive and stable system of customs legislation;
• customs cooperation mechanism with national and international
law enforcement agencies;
• introduction of the latest information technologies at customs;
• simplication of customs procedures;
• customs risk identication mechanism, and;
• eciency of customs audit and post-audit as forms of customs
control.
Admittedly, attitudes towards smuggling have changed in Europe in
recent years.
On 5 July 2017, the European Union approved Directive № 2017/1371
of the European Parliament and of the Council, which provided that by
July 2019 all EU Member States were to establish, inter alia, a minimum
criminal penalty for crimes committed by individuals who harm to the EU’s
nancial interests: 4 years’ imprisonment in case of signicant damage or
signicant gain or other punishment that is not a criminal sanction if the
damage / benet was less than € 10,000. Some member states have had
criminal penalties for smuggling before.
For example, in Poland, the Criminal Finance Code (Law No. 930, 1999)
(as amended in 1999) provides a ne or imprisonment for smuggling. The
threshold after which an administrative violation becomes criminal is
10,500 zlotys (about 2.37 thousand euros). The ne can reach 20 million
zlotys (about 4.5 million euros). In Germany, “illegal import, export, and
transit of goods” is a tax crime. The penalty for this crime can be a ne of
10,500 to 250,000 euros or up to 5 years in prison. Large-scale smuggling
can lead to 10 years in prison (2000 Tax Code) (International Renaissance
Foundation, 2020).
In dierent EU countries, the limit of the value of goods, from which
criminal liability arises, diers signicantly. For example, in Slovakia, this
gure is 300 euros, and in Portugal, it is more than 50 thousand euros
(Sarapinas, 2020).
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At the same time, it is quite dicult to objectively determine which
system is more eective – with a lower or higher “threshold” of criminal
liability.
How has the reduction in the level of criminal liability aected the
dynamics of oenses? For example, in Lithuania, from 2019, the minimum
limit of criminal liability for smuggling goods has decreased from 10
thousand euros to 6 thousand. This means that according to the current
legislation of Lithuania, smuggling of goods up to 6 thousand euros is an
administrative oense, from 6 to 10 thousand euros – a crime of medium
gravity, more than 10 thousand euros – belongs to the category of serious
crimes. Initially, a forecast was made and, it was assumed that after the
legislative changes, all administrative oenses, worth from 6 to 10 thousand
euros, in a similar percentage will be in the future.
But the allegations have not been conrmed, and after lowering the
criminal liability threshold, a signicant proportion of such smuggling
cases have decreased. At the same time, the smuggling of goods worth up to
6,000 euros, which fall under administrative liability, has increased. This
is a very clear example that despite the possibility of making more money,
the alternative to criminal liability is scary and good prevention (Sarapinas,
2020).
Thus, it is obvious that neither in Ukraine nor in European countries
at present there is no unity of understanding of further directions of
development of the institution of smuggling.
While changes to the current Criminal Code of Ukraine have not yet been
made, the three main options for criminalization are being most actively
discussed:
1. To criminalize the illegal movement across the customs border of any
goods committed in signicant quantities, establishing a minimum
amount of such smuggling, over which the criminal liability begins.
The sanction for such acts is imprisonment of the person (persons)
concerned and may additionally provide for a ne, conscation of the
subject of smuggling, all property, etc. Critics of this position believe that the
establishment of certain minimum amounts of smuggling will contribute to
the abuse of law enforcement agencies in estimating such volumes, increase
bribes at all stages of investigations of such cases, and fragmentation of
parties by potential smugglers to avoid punishment.
Proponents, on the other hand, believe that the introduction of criminal
liability should help reduce the number of such crimes and will have an
educational impact on the perpetrators.
In their view, increasing accountability will help reduce smuggling, and
oenders will be punished fairly for their illegal actions.
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Vadym Pidgorodynskyi, Dmitriy Kamensky, Inna Bolokan, Tamara Makarenko y Hanna Samilo
Smuggling or violation of customs rules: actual questions of application of administrative and
criminal liability
2. Criminalize the illegal movement of only excisable goods (tobacco and
alcohol products, fuel) with the establishment of minimum volumes,
over which criminal liability begins. The position of the supporters of
this idea coincides with the previous one, but the peculiarity is that
they recognize the greater public danger of smuggling of excisable
goods both given the amount of payments to the budget and taking
into account the specics of excisable products. In addition to
supporters, this idea has opponents who consider such actions only a
partial solution to the problem. Because the denition of smuggling,
in this case, does not include other popular goods, such as household
appliances, electronics, perfumes, clothing, the illegal movement of
which across the border is common in Ukraine. According to them,
criminalizing the illegal movement of only excisable goods will
reduce the eectiveness of the ght against smuggling.
3. Criminalize the illegal movement of goods across the customs
border, committed in large quantities, establishing criminal liability
in the form of nancial sanctions and other types of a punishment
without imprisonment. Such sanctions, in addition to nes and
seizure of the subject of smuggling, maybe the seizure of a vehicle
used for smuggling, conscation of property, etc. Alternative
punishments for this crime may include community service, house
arrest, and even a travel ban. The latter type of punishment can be a
signicant restriction for many and, at the same time, not as severe
as imprisonment. Notably when it comes to the central professional
activity. Simultaneously, some of the listed sanctions can be applied
for minor crimes that fall under criminal punishment.
Apparently, the authors of the draft law (submitted to the Verkhovna
Rada of Ukraine) have chosen the rst option to solve the problem.
However, this draft law not only expands the objective side of the act but
radically changes the structure of the whole crime.
The legislator proposes to postpone the completion of crimes from the
moment of actual movement of goods across the customs border of Ukraine
(leaving the customs control zone) to the moment of active behavior in the
movement, i.e. during the stay in the customs control zone.
Today, the law considers a crime of smuggling (Articles 201 and 201-1 of
the Criminal Code of Ukraine) to be completed when the goods have been
moved outside the customs control zone, but at the time of its stay there
and detection of signs of this oense, the law refers to attempted crime.
This was emphasized in more detail in the almost canonical resolution of
the Plenum of the Supreme Court of Ukraine of June 3, 2005, No. 8 on
smuggling issues. There, the attempt was described as the detection of signs
of an oense during a customs inspection, re-inspection, etc. at a time when
the goods have not yet been moved.
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In the proposed version of the articles, the attempted crime is moved
in time technologically to the stage before the movement of goods in the
customs control zone for customs clearance, when the signs of a criminal
oense are almost not detected. And the completed crime occurs at the time
of detection of indications of a criminal oense during the movement of
goods in the customs control zone or outside the customs control zones.
Secondly, the ght against smuggling is complemented by the ght
against the inaccurate declaration of goods, which, in fact, can be considered
as a kind of smuggling, as the inclusion in the customs declaration of wrong
information about the goods is its concealment from customs control.
Third, the legislator establishes the amount of damage from which
criminal liability arises, without any logic, because virtually the same
criminal oenses related to tax evasion have completely dierent amounts
of damage to classify such an oense as criminal. For example, the amount
of unpaid taxes, which begins criminal liability (a signicant amount) under
Article 212 of the Criminal Code of Ukraine (Law No. 2341-III, 2001), is
3405000.00 UAH, but under the proposed Article 2014 of the Criminal
Code of Ukraine – 147550.00 UAH. Moreover, the objective aspects of a
criminal oense under both articles are almost similar – evasion of taxes
and fees. The authorities proposed an even more striking disproportion in
Article 2012 of the Criminal Code of Ukraine, according to which criminal
liability for moving goods with concealment from customs control or
outside customs control begins with the amount of UAH 113,500.00, which
averages UAH 36,320.00 in taxes.
In addition, further attention should be focused on the impact of the
pandemic (caused by Сovid-19 (Kharytonov et al., 2020) on changing
smuggling schemes, and new opportunities for violation of customs
regulations.
Conclusions
In our opinion, the current legislation of Ukraine currently adequately
regulates relations related to smuggling. In particular, smuggling is an
administrative oense, which is justied given the economic nature
of this oense. Accordingly, it is more expedient to bring the violator to
administrative responsibility with the payment of a ne, per the amount
of smuggling. The decriminalization of smuggling at one time relieved law
enforcement agencies, which frankly could not cope with the large number of
criminal proceedings related to smuggling. In addition, the corruption risks
associated with the investigation of relevant crimes have been signicantly
reduced. Last but not least, the decriminalization of punishment took
place following the recommendations of the European Union and under
812
Vadym Pidgorodynskyi, Dmitriy Kamensky, Inna Bolokan, Tamara Makarenko y Hanna Samilo
Smuggling or violation of customs rules: actual questions of application of administrative and
criminal liability
European approaches to regulating these relations. However, this year
the Ukrainian parliament is considering a draft law on the criminalization
of smuggling, as it is believed that this measure will help ll the budget.
Let us disagree with the authors of the bill and investigate the state of the
issues under study before the decriminalization of smuggling in 2011. If the
criminalization of smuggling cannot be avoided, we hope that the crime will
not include any goods, but only certain groups of goods. In this case, the
principal punishment for this oense should be ne.
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Esta revista fue editada en formato digital y publicada
en octubre de 2021, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.39 Nº 70
