Customs offenses Exemption from administrative liability upon expiration of the limitation period for administrative liability

By the resolution of the SMAS of Almaty dated February 1, 2018, IP M., according to 15 protocols, was brought to administrative responsibility under Article 544 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) with a fine of 300 monthly calculation indices (hereinafter referred to as MCI) in the amount of 680,700 tenge, with exclusion from the relevant register of persons engaged in activities in the field of customs. The ruling of February 7, 2018 eliminated the typo by replacing the exclusion from the register with the confiscation of vehicles that are the direct objects of an administrative offense. By a decision of the same court dated March 7, 2018, in connection with the invalidation of the protocols on an administrative offense by the decision of the Judicial Board for Civil Cases of the Almaty City Court dated February 20, 2018, the decision of the SMAS dated February 1, 2018 was canceled due to newly discovered circumstances with the termination of the proceedings. At the same time, the court issued a private ruling against the Department, indicating a gross violation of the law by the Department's employees. In the submission, the chairman of the board proposes to review the adopted judicial acts in cassation due to violations of uniformity in the interpretation and application of legal norms by the courts, pointing to procedural violations when considering an application for review due to newly discovered circumstances, the unreasonableness of a number of court conclusions about procedural violations committed by the Department and the decision of the judicial Board for Civil Cases of the Almaty City Court dated February 20, 2018. of the year.

Customs offenses Exemption from administrative liability upon expiration of the limitation period for administrative liability

According to the case file, the inspection act dated February 28, 2017 established a violation by IP M. of the requirements of Article 383 of the Code of the Republic of Kazakhstan "On Customs Affairs in the Republic of Kazakhstan" (hereinafter referred to as the Code), which resulted in the transfer of IP M. under a lease agreement with the right of subsequent purchase dated January 7, 2013 (hereinafter referred to as the Lease Agreement) to a joint–stock company "T" vehicles imported into the territory of the Customs Union in 2012 as goods and placed under the temporary import procedure. According to Appendix No. 1 to this agreement, the vehicles listed in it were transferred to IP M. to JSC "T" on the same day. By Additional Agreement No. 1 dated December 19, 2013 to this agreement, JSC "T" transferred its right to purchase vehicles to LLP "Transport Company "N". Subsequently, these vehicles were released for free circulation in the period January-March 2014. By notification of the inspection results dated February 28, 2017 No. 2404, the Department of IP M. accrued a penalty for customs duty and VAT on imported goods in the total amount of 23,464,938 tenge. Payment of IP M. The transfer of this amount to the budget does not exempt him, contrary to the arguments of his representatives, from administrative responsibility provided for by the Administrative Code. By the decision of the specialized interdistrict Economic Court (hereinafter referred to as the SMEC) for the city of Almaty dated May 18, 2017, the application of IP M. to the Department for recognition as illegal and cancellation of the above–mentioned notification was denied. By the decision of the Appellate judicial Board for civil cases of the Almaty City Court dated July 19, 2017, this decision was left unchanged, the appeal of IP M. was dismissed. It should be noted that the decision of the Council of Economic and Social Council of Almaty dated October 7, 2016 dismissed the claim of Transport Company N LLP against IP M. and JSC T for invalidation of the Lease Agreement and subsequent additional agreements No. 1 dated December 19, 2013 and No. 2 dated March 2, 2014. By the decision of the Appellate Judicial Board for Civil Cases of the Almaty City Court dated January 19, 2017, this decision was left unchanged, and the plaintiff's appeal was dismissed.

According to this decision, representatives of IP M. at the court session objected to the satisfaction of the claim, insisted on the validity of the Lease Agreement, pointing to its partial execution. Therefore, the board does not take into account the arguments of the representatives of IP M. in the present court proceedings regarding the challenge of the lease relationship with JSC "T". Also, by the decision of the Council of Economic and Social Council of Almaty dated November 28, 2017, the claim of JSC "T" to IP M. for invalidation of the Lease Agreement was denied. The decision of the Appellate Judicial Board of the Almaty Regional Court dated June 22, 2016 satisfied the claim of IP M. against JSC "T" and LLP "Transport Company "N" for the recovery of a sum of money in solidarity on the basis of the contract of sale of freight transport dated December 19, 2013 and additional agreements dated December 19, 2013 No. 1 and No. 2 dated March 2, 2014 to the Lease Agreement dated January 7, 2013. The counterclaim of JSC "T" against IP M. for invalidation of the above-mentioned additional agreements No. 1 and No. 2 was refused. By the decision of the judge of the judicial board of the Supreme Court of the Republic of Kazakhstan dated January 30, 2017, the review of this decision of the appellate instance was refused. Thus, judicial acts established the validity of the Lease Agreement dated January 7, 2013 and the legality of the conclusions of the inspection report on violations of customs legislation dated February 28, 2017. On the fact of violation of customs legislation, the chief specialist of the Department on December 12, 2017, 15 protocols were drawn up in relation to IP M. under Article 544 of the Administrative Code. The decision of the SMAS of Almaty dated March 7, 2018 was revised due to newly discovered circumstances and the decision of the same court dated February 1, 2018 on imposing an administrative penalty on IP M. under Article 544 of the Administrative Code was canceled. The review was based on the decision of the Judicial Board for Civil Cases of the Almaty City Court dated February 20, 2018. However, by the resolution of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan on September 6, 2018, this resolution was canceled. The violation of customs legislation committed by IP M. resulted in the transfer of goods imported under the temporary import procedure to other persons without the appropriate permission of the customs authority. The Department has qualified this offense under Article 544 of the Administrative Code. In accordance with the first part of Article 4 of the Administrative Code, a person who has committed an administrative offense is liable on the basis of the legislation in force at the time of the commission of this offense. The time of the commission of the offense should be considered January 7, 2013, when IP M. According to the Lease Agreement and Appendix No. 1 to it, freight transport was transferred to JSC "T". In accordance with the 2001 Administrative Code, the violation of IP M. should have been qualified under Article 423 of the 2001 Administrative Code, the sanction of which, as of January 2013, provided for a fine of 20 MCI with or without confiscation of goods and vehicles that are the direct subjects of an administrative offense.  Thus, the sanction of Article 544 of the Administrative Code of 2014 increases administrative responsibility in comparison with the sanction of Article 423 of the Administrative Code of 2001. Therefore, taking into account the provisions of Article 5 of the Administrative Code, the actions of IP M. are qualified under Article 423 of the Administrative Code of 2001. This article 423 was included in Chapter 26 "Administrative offenses in the field of customs affairs" of the Administrative Code of 2001. As of January 2013, the second part of Article 69 of the Administrative Code of 2001 did not contain an extended statute of limitations for administrative liability for customs offenses. By this provision, the second part of Article 69 of the Administrative Code of 2001 was supplemented by the Law of the Republic of Kazakhstan dated July 3, 2013 No. 121-V. Therefore, the statute of limitations for the commission of an offense on January 7, 2013 in the field of customs was regulated by the first part of Article 69 of the Administrative Code of 2001. This period has expired at the time of drawing up the protocols on the administrative offense dated December 12, 2017.

Customs offenses Exemption from administrative liability upon expiration of the limitation period for administrative liability

Therefore, on the basis of subparagraph 5) of the first part of Article 741 of the Administrative Code, proceedings in the case of an administrative offense under Article 544 of the Administrative Code are subject to termination due to the expiration of the statute of limitations for administrative liability. The Specialized Judicial Board of the Supreme Court overturned the decision of the court of first instance and the proceedings in the case of an administrative offense against individual entrepreneur M. under Article 544 of the Administrative Code were terminated due to the expiration of the statute of limitations for administrative liability. The submission of the Chairman of the specialized judicial board of the Supreme Court of the Republic of Kazakhstan has been satisfied. 

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