Comment to article 209. Economic smuggling of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. Large-scale movement of goods or other items across the customs border of the Republic of Kazakhstan, with the exception of those specified in Article 250 of this Code, committed in addition to or with concealment from customs control, or with the fraudulent use of documents or means of customs identification, or involving non-declaration or unreliable declaration of prohibited or restricted goods across the customs border, items and valuables for which special rules have been established for movement across the customs border, —    

is punishable by a fine in the amount of two hundred to five hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of two to five months with or without confiscation of property, or arrest for a term of four to six months, or correctional labor for a term of one to two years, or imprisonment for a term of up to three years with or without a fine in the amount of up to one hundred monthly calculation indices or in the amount of the convicted person's salary or other income for a period of up to one month.      

2. The same act committed by:    

a) repeatedly;      

b) a person using his official position;      

c) using violence against a person exercising customs control, —      

is punishable by imprisonment for a term of two to five years with confiscation of property.      

3. The acts provided for in the first or second parts of this Article, committed:      

a) a person authorized to perform state functions, or a person equivalent to him, if they involve the use of his official position; b) an organized group, —      

are punishable by imprisonment for a term of three to eight years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, and in the cases provided for in paragraph a), up to seven years with confiscation of property.      

Note. The acts provided for in this article shall be deemed to have been committed on a large scale if the value of the displaced goods exceeds one thousand monthly calculation indices.      

The public danger of economic smuggling is expressed in the fact that it harms the economic interests of the state, since the state budget does not receive duties that are set by the state on imported and exported goods. In addition, goods (for example, strategic raw materials) are exported from the republic, the ban on the export of which is due to their importance for the economy of our country.    

The object of economic smuggling is the procedure and rules established by the state for the movement of goods and objects across the customs border, ensuring the economic stability and security of Kazakhstan.     

The Supreme Court of the Republic of Kazakhstan, in paragraph 1 of the resolution "On the practice of applying legislation on criminal liability for smuggling" dated July 18, 1997 (as amended and supplemented), notes that the economic interests of the state are recognized as the direct object of smuggling (Article 209 of the Criminal Code), and in the case of smuggling qualified under Article 250 of the Criminal Code, the interests of public and state security.      

The subject of the crime is goods and other items, the list of which is given in art. 7 of the Customs Code of the Republic of Kazakhstan dated April 5, 2003. In accordance with the customs legislation of the Republic of Kazakhstan, a commodity is defined as any movable object of the material world, including currency, currency valuables, electrical, thermal and other types of energy and vehicles, with the exception of vehicles used for international transportation. These also include: cultural values that are important to the artistic, scientific, historical and archaeological heritage of nations — works of art.; antiquities of historical value and other items of specified significance; intellectual property objects; endangered species of animals and plants, their parts or derivatives.      

The subject of this crime may also be goods and valuables prohibited or restricted for movement across the customs border, for which special rules for movement across the customs border are established, the list of which is established by the Customs Committee of the Republic of Kazakhstan "On Declaration and Procedure for movement across the Border of the Republic of Kazakhstan". The value of contraband items is determined based on government regulated prices, if any, and in other cases, based on the customs value at the time of the crime. If it is impossible to determine the value in the specified order (for example, in cases of smuggling of counterfeit alcoholic beverages and other counterfeit goods) It is established on the basis of an expert opinion in accordance with the rules established by the customs legislation.      In the Customs Code of the Republic of Kazakhstan dated April 5, 2003, Chapter 34 sets out the conditions for the movement of goods and vehicles by individuals, and Chapter 48 sets out the declaration of goods.      

The movement of narcotic drugs; psychotropic; poisonous; potent; toxic; radioactive or explosive substances; weapons, military equipment, explosive devices; firearms and ammunition; nuclear, chemical, biological and other types of weapons of mass destruction, materials and equipment that can be used to create weapons of mass destruction, entails criminal liability regardless of depends on the size and quantity of contraband items under art. 250 of the Criminal Code of the Republic of Kazakhstan.      

The objective side of economic smuggling is expressed in the movement of the above-mentioned items across the customs border of the Republic of Kazakhstan, committed by:      

- in addition to customs control;     

- with concealment from customs control;      

- with the fraudulent use of documents or means of customs identification;      

- without declaring goods, things and valuables prohibited or restricted for movement across the customs border, in respect of which special rules for movement across the customs border are established.;      

- with an unreliable declaration of goods, things and valuables prohibited or restricted for movement across the customs border, in respect of which special rules for movement across the customs border are established.      

Smuggling is defined as the illegal movement of goods or other valuables and objects across the state or customs border of the Republic of Kazakhstan.      

In accordance with art . 9 of the Customs Code of the Republic of Kazakhstan, movement should be understood as the commission of actions to import goods or other items into or out of the customs territory of the Republic of Kazakhstan. Import and export should be understood as the movement of contraband items by any means (transportation or shipment by any type of transport, including by air, mail, carrying in hands, in clothing pockets, in the form of hand luggage, etc.). At the same time, upon importation into the customs territory of the Republic of Kazakhstan, the goods are recognized as moved from the moment of physical crossing of the customs border of the Republic of Kazakhstan, upon export — from the moment of filing the customs declaration.      

The concept of the customs territory and the customs border are defined in Article 6 of the Customs Code of the Republic of Kazakhstan, and the concept of the state border is reflected in the Law of the Republic of Kazakhstan "On the State Border of the Republic of Kazakhstan" dated January 13, 1993 (as amended and supplemented).      According to the disposition of this article, it is illegal:      

- in addition to customs control, the movement of goods (items) consists in their shipment and transportation outside customs posts, checkpoints and other places designated by the legislation and customs authorities of the Republic of Kazakhstan for customs clearance, or outside the time set for its production;      

- hiding goods (items) from customs control implies any method that makes it difficult to detect them (for example, hiding, using hiding places during their transportation, or making some items look like others, etc.);      

- the fraudulent use of documents or means of customs identification involves the presentation to customs authorities, as well as to persons exercising border control, of invalid, illegally obtained, forged, and also containing false information documents or the presentation of a genuine means of identification related to other objects. The use of customs identification means means the use of forged seals, seals, stamps, numeric, letter or other markings, identification marks, photographs, etc.;      

- failure to declare or unreliable declaration is the failure to fulfill or improper fulfillment of the obligation to file a customs declaration in accordance with the rules established by law in relation to prohibited or restricted to movement or withdrawn from circulation of goods or other valuables and items.      

When establishing the facts of illegal movement of contraband goods or other valuables and objects by importing or exporting them across the customs border of the Republic of Kazakhstan using vehicles by persons found guilty of crimes provided for in Articles 209, 250 of the Criminal Code of the Republic of Kazakhstan, the fate of the vehicles used in smuggling should be resolved depending on whether the latter are recognized in accordance with the established procedure. in accordance with the procedure established by law for material evidence in a case as instruments of a crime.      

A vehicle should be recognized as an instrument of crime when it serves as a means of transporting contraband items across the customs border in addition to customs control, as well as in other cases when it is used to conceal contraband items from customs control (in particular, by changing the technical parameters of the vehicle, its individual units and parts, transporting contraband items in a gas tank, under the bottom vehicles, devices for hidden containers and vehicle equipment with caches, other devices, making it difficult to detect contraband items, etc.).      

A vehicle used by its owner as an instrument of smuggling and recognized as material evidence (paragraph 1, Part 3, Article 121 of the Criminal Procedure Code of the Republic of Kazakhstan) is subject to confiscation. In the event that the intent of the owner of goods, other valuables or vehicles recognized as contraband items or used as instruments of crime did not cover complicity in smuggling and the movement of his property across the customs border by smuggling or the use of this property as an instrument of smuggling by other persons, such property is not subject to confiscation.      

A prerequisite for criminal liability under Article 209 of the Criminal Code of the Republic of Kazakhstan is major damage. According to the notes to Article 209 of the Criminal Code of the Republic of Kazakhstan, a crime is considered to have been committed on a large scale if the value of the displaced goods exceeds one thousand monthly calculation indices established by the legislation of the Republic of Kazakhstan at the time of the commission of the crime.      

The circumstances distinguishing criminally punishable smuggling from administratively punishable smuggling, as well as from violations of customs regulations involving the movement of goods and items across the customs border, are the large size of economic smuggling or the movement of items for which special rules are established.     

When recognizing acts provided for in Article 209 of the Criminal Code as committed on a large scale, the value of only that part of the goods or other items that were moved across the customs border in addition to or with concealment from customs control, or with the fraudulent use of documents or means of customs identification, as well as the value of prohibited or restricted movement across the customs border, should be taken into account. the border of goods, things and valuables for which special rules have been established for movement across the customs border, undeclared or unreliably declared.      

The commission of smuggling objectively involves evasion from paying mandatory payments and taxes levied by customs authorities, which is covered by the direct intent of the perpetrator simultaneously with the illegal movement of goods or other valuables and is, as a rule, the purpose of this movement, therefore these actions are not subject to additional qualification for tax evasion and other mandatory payments to the budget.      

Such qualification can take place only in cases where the actions that form the components of smuggling and criminal evasion of taxes and other mandatory payments to the budget are committed at different times.      

Actions that constitute elements of deceptive use of customs and other documents (forgery of official documents, forgery of payment signs, forgery of documents) also do not require additional qualifications.      

In cases where other crimes are committed along with smuggling, in particular those related to currency, narcotic drugs, firearms and ammunition, etc., or with violation of the state border, which are subject to control other than customs (respectively border, currency, drugs, etc.), the act must be qualified according to the totality of the crimes committed, provided for by the relevant norms of the criminal law.      This crime is considered over.:      

- in case of import and export carried out illegally, from the moment of direct border crossing;      

- for imports carried out under the guise of legal movement, from the moment of completion of customs clearance, and for items for which special rules are established, from the moment of completion of the border control procedure.;     

- in case of export carried out under the guise of legal transfer, from the moment of completion of customs clearance.      The subject of the crime is a sane individual who has reached the age of 16.     

On the subjective side, the analyzed crime is characterized by the presence of only direct intent. The guilty person is aware that he is transporting goods illegally (in a prohibited way), anticipates the onset of socially dangerous consequences and desires this.      

A person whose intent is to illegally move goods or other valuables and objects belonging to different persons, including himself, must be responsible for the smuggling of the entire (jointly transported) volume of contraband items. The owner of a separate part of such knowingly illegally transported goods or other valuables and objects, whose intent does not cover the actions of other persons to illegally move the rest of the contraband items, is criminally liable only for smuggling his property. The actions of persons who, although not the owners of contraband items, are guilty of knowingly illegally transporting such items across the customs border for a fee, as a courier, should also be qualified.      The qualifying signs of economic smuggling are:      

a) committed repeatedly;      

b) by an official using his official position;      

c) using violence against a person exercising customs control.      

Smuggling is considered to have been committed repeatedly if it has been committed by one person two or more times. At the same time, it is necessary to establish the fact that a previous criminal record has not been removed or cancelled in accordance with the procedure established by law, or that a person has not been released from criminal liability for previously committed smuggling or the statute of limitations for criminal liability for a previous crime has not expired.      

Under economic smuggling committed by an official using his official position, the Supreme Court of the Republic of Kazakhstan, in its resolution "On the practice of applying legislation on criminal liability for smuggling" dated July 18, 1997 (with the following amendments and additions), clarifies that such a person should be considered as such, who is required by duty to carry out customs or border control, appropriate actions to inspect goods or other valuables or objects moved across the state or customs border of the Republic of Kazakhstan and give permission to cross this border. When such officials commit smuggling, no additional qualifications are required under the articles of the criminal law on official offenses. At the same time, other persons who have committed smuggling using their official position are liable for the totality of crimes provided for by the applicable norm of the criminal law on official offenses and the relevant part of Article 209 of the Criminal Code, without reference to this qualifying feature.      Officials who have committed smuggling using their official position are those whose official position gives them the right to carry out customs control or to transport goods across the border without customs inspection. The activities of such persons must meet two conditions: the official position of the person; the use of his official position in the illegal movement of goods or objects across the customs border of the Republic of Kazakhstan.      

The commission of economic smuggling with the use of violence against a person exercising customs control should be qualified under paragraph "b" of Part 2 of Article 209 of the Criminal Code of the Republic of Kazakhstan only if the violence used resulted in causing mild, moderate or serious harm to health. The occurrence of more serious consequences, causing serious harm or death requires qualification in accordance with Articles 209, 103 and 96 of the Criminal Code of the Republic of Kazakhstan.      

Acts provided for in the first or second parts of this article, committed by the Government of the Russian Federation, are recognized as particularly qualifying signs of economic smuggling.:      

- a person authorized to perform government functions, or a person equivalent to him, if they involve the use of his official position.;      

- an organized group.      

These signs are identical to the signs considered in the analysis of paragraphs "a" and "b" of Part 3 of art.193 of the Criminal Code of the Republic of Kazakhstan.

Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.                  

Date of amendment of the act:  08/02/2007 Date of adoption of the act:  08/02/2007 Place of acceptance:  NO Authority that adopted the act: 180000000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  167 Status of the act:  new Sphere of legal relations:  028000000000 Report form:  COMM Legal force:  1900 Language of the Act:  rus

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