On the practice of applying legislation on criminal liability for smuggling
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997 No. 10.
The footnote. Title as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 7 (for the procedure of entry into force, see paragraph 2).
The footnote. Throughout the text:
The numbers "209" and "250" are replaced by the numbers "234" and "286", respectively;
The words "customs border" have been replaced by the words "border of the Eurasian Economic Union";
The words "customs clearance" are replaced by the words "customs declaration";
The word "crimes" has been replaced by the words "criminal offenses";
The word "crimes" is replaced by the words "criminal offenses";
The word "crimes" has been replaced by the words "criminal offenses" in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
In order to ensure the correct and uniform application of legislation on criminally punishable smuggling, the plenary session of the Supreme Court decides:
The footnote. The preamble as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 7 (for the procedure of entry into force, see paragraph 2).
Economic smuggling, the responsibility for which is provided for in Article 234 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the Criminal Code), refers to the illegal movement of goods or other valuables and objects across the customs border of the Eurasian Economic Union. Contraband of items withdrawn from circulation or items whose circulation is restricted, the responsibility for which is provided for in Article 286 of the Criminal Code, is understood to mean the illegal movement of such goods across the customs border of the Eurasian Economic Union and (or) the State Border of the Republic of Kazakhstan.
The circumstances distinguishing criminally punishable smuggling from smuggling provided for by the Code of the Republic of Kazakhstan on Administrative Offences, as well as from violations of customs rules involving the movement of goods and items across the customs border, are the large size of contraband or the movement of items for which special rules are established.
The concepts of customs and state borders are defined in the Code of the Republic of Kazakhstan "On Customs Regulation in the Republic of Kazakhstan" and the Law of the Republic of Kazakhstan dated January 16, 2013 No. 70-V "On the State Border of the Republic of Kazakhstan".
The indication in procedural investigative and court documents of large, especially large size and other qualifying signs of smuggling, including special rules of movement in relation to certain items, is mandatory.
The footnote. Paragraph 1 as amended by Resolution of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 No. 3; regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 18.06.2004 No. 3; dated 22.12.2008 No. 7 (for the procedure of entry into force, see paragraph 2); dated 21.04.2011 No. 1 (effective from the date of official publication); dated 20.04.2018 No. 8 (effective effective from the date of the first official publication).
Illegal movement of goods or other valuables and objects can be carried out either by importing them into the customs territory or by exporting them from this territory.
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.).
Illegal movement is carried out both at checkpoints and other places designated by law for border crossing (under the guise of legal movement) and outside these places (illegally).
The criminal offense 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 registration of the customs declaration, 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 registration of the customs declaration.
In cases of movement of goods at checkpoints and other places determined by law, but at an unspecified time of work of the customs authorities, the criminal offense is considered completed from the moment of crossing the border.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
From the objective side, smuggling is characterized by:
concealment of goods or other valuables and objects from customs control;
their movement in addition to customs control;
their undeclaring or unreliable declaration;
fraudulent use of customs and other documents or means of customs identification.
The indication of deliberately false information in the application for the release of goods prior to the filing of a declaration for goods or in the application for operations in respect of temporarily exported international transportation vehicles that are goods placed under the procedure of temporary import (admission), including the submission of invalid documents, forged or containing deliberately false (false) information.
To recognize such actions as criminal, the occurrence of any harmful consequences is not required. In this regard, in the case of illegal movement of goods or other items on a large scale across the customs border of the Eurasian Economic Union under the customs procedure of "customs transit", the act should be qualified under Article 234 of the Criminal Code, regardless of the purpose of the goods or items for their use on the territory of the member states of the said Union (internal transit), or third countries (external transit).
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Concealment from customs control consists in concealing goods or other valuables and objects, using hiding places or other methods during their transportation that make it difficult to detect them, or in making some objects look like others.
In addition to customs control, the movement of contraband items consists in their transfer and transportation outside customs posts, checkpoints and other places designated by the legislation and customs authorities of the Republic of Kazakhstan for customs declaration, or outside the time set for its production.
The fraudulent use of customs and other 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, the use of forged seals, stamps, and other similar means of customs identification, or the presentation of a genuine means of identification related to other objects.
Non-declaration or false declaration is a declaration by the declarant to the customs authority using a customs declaration of false information about the goods (name, cost, quantity, weight, etc.) about the chosen customs procedure and (or) other information necessary for customs purposes, or failure to fulfill the obligation to submit such an application with the specified information about the goods during the customs declaration.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Contraband items are any movable objects of the material world, including currency, currency valuables, electrical, thermal or other types of energy, and vehicles.
These also include cultural values that are important to the artistic, scientific, historical and archaeological heritage of peoples - works of art, antiquities and other objects of this importance, objects of intellectual property, endangered species of animals and plants, their parts and derivatives (derivatives). Responsibility for the illegal movement across the customs border of the Eurasian Economic Union of these, as well as other items that have not been withdrawn from circulation or items whose circulation is not restricted (for example, food, clothing, shoes, perfumes, etc.), is established by Article 234 of the Criminal Code.
Illegal export of cultural values and objects of national cultural heritage outside the Republic of Kazakhstan or their non-return to the Republic of Kazakhstan, with transfer across the state border to another state of the Eurasian Economic Union is qualified under part 1-1 of Article 203 of the Criminal Code.
Illegal export of cultural values and objects of national cultural heritage outside the Republic of Kazakhstan or their non-return to the Republic of Kazakhstan, with movement across the customs border of the Eurasian Economic Union, if there is also an element of economic smuggling in the actions of a person, is qualified in the aggregate of parts 1-1 of Article 203 of the Criminal Code and the corresponding part of Article 234 of the Criminal Code.
The footnote. Paragraph 6 as amended by Resolutions of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 No. 3; dated 21.04.2011 No. 1 (effective from the date of official publication); dated 11.12.2020 No. 6 (effective from the date of the first official publication).
6-1. Courts should keep in mind that, in accordance with the current legislation of the Republic of Kazakhstan, the following procedure has been established for the import and export of cash and (or) monetary instruments for individuals:
The import into or export from the Republic of Kazakhstan of foreign and (or) national currency in cash, promissory notes, checks (including traveler's checks), and securities in documentary form from or to the territory that is part of the customs territory of the Eurasian Economic Union is carried out without restrictions and customs declaration.
In case of one-time import into the Republic of Kazakhstan from the territory of countries that are not members of the Eurasian Economic Union, or export from the Republic of Kazakhstan to the territory of such countries of foreign and (or) national currency in cash (except for coins made of precious metals) and (or) traveler's checks for a total amount exceeding the equivalent of 10 thousand US dollars, These valuables are subject to customs declaration in writing by submitting a passenger customs declaration for the entire amount of imported or exported valuables.
The footnote. The Resolution was supplemented by paragraph 6-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
6-2. If a person commits smuggling of foreign and (or) national currency in cash and (or) traveler's checks, their part in the amount not subject to mandatory written declaration in accordance with the legislation of the Republic of Kazakhstan, that is, not exceeding the equivalent of 10 thousand US dollars, cannot be recognized as an object of smuggling and included in the scope of the charges brought against the person.. This amount is subject to refund to the owner.
The footnote. The resolution was supplemented by paragraph 6-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 21.04.2011 No. 1 (effective from the date of its official publication).
The movement of narcotic drugs, psychotropic substances, their analogues, precursors, potent, poisonous, toxic, radioactive substances, radioactive waste or nuclear materials, explosives, weapons, military equipment, explosive devices, firearms, ammunition, nuclear, chemical, biological and other types of weapons of mass destruction constitutes a criminal offense provided for by Article 286 of the Criminal Code, and materials, equipment, or components that can be used to create weapons of mass destruction, entails liability regardless of the size and quantity of contraband items.
The footnote. Paragraph 7 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 No. 3; regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The value of contraband items is determined based on the customs value of the goods at the time of the commission of a criminal offense based on the conclusion of a specialist (expert) in accordance with the rules established by the legislation on customs and criminal procedure legislation.
If there is no information about the customs value of contraband items, their value is determined based on government regulated prices (for example, in cases of smuggling of counterfeit alcoholic beverages and other counterfeit goods). In the absence of such information, the price of the product and its value are determined based on the expert's (specialist's) opinion.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
8-1. When recognizing acts provided for in Article 234 of the Criminal Code as committed on a large or especially 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 goods, should be taken into account. movement of goods, things and valuables across the customs border, in respect of which special rules for movement across the customs border are established, undeclared or improperly declared.
The rest of the goods or other items that have been moved across the customs border in compliance with the requirements of customs and other legislation (if such goods have not been seized or seized in accordance with the laws of the Republic of Kazakhstan) are subject to release.
The footnote. The Resolution was supplemented by paragraph 8-1 in accordance with the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 3; as amended by the normative resolutions of the Supreme Court of the Republic of Kazakhstan dated 04/21/2011 No. 1 (effective from the date of official publication); dated 04/20/2018 No. 8 (effective from the date of the first official publication).
An official who has committed smuggling using his official position should be considered a person who, in his duty, is obliged to carry out customs or border control, appropriate actions to inspect goods or other valuables and objects transported across the customs border of the Eurasian Economic Union and (or) the State Border of the Republic of Kazakhstan and give permission to cross the border.
The smuggling committed by such persons using their official position does not require additional qualifications under the articles of the criminal law on corruption and other criminal offenses against the interests of the civil service and public administration.
Other persons authorized to perform state functions, or equivalent to them, who have committed smuggling using their official position, are liable on a general basis, that is, for a set of criminal offenses provided for by the applicable norm of the criminal law on official criminal offenses and the relevant part of the article of the Criminal Code on smuggling without reference to this qualifying feature.
The footnote. Paragraph 9, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 No. 3; dated 22.12.2008 No. 7 (for the procedure of entry into force, see paragraph 2); dated 21.04.2011 No. 1 (effective from the date of official publication).
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, etc. should also be qualified.
The existence of the qualifying feature "criminal group" is determined based on the content of paragraph 24) of Article 3 of the Criminal Code.
The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 3; dated 04/20/2018 No. 8 (effective from the date of the first official publication).
The commission of smuggling is objectively associated with evasion from payment of 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 acts forming the components of smuggling and criminal evasion of mandatory payments 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 of committing, along with smuggling, other criminal offenses, in particular, related to currency, narcotic drugs, psychotropic substances, their analogues, firearms and ammunition, etc., or with violation of the state border, which are subject to control other than customs (respectively, border, currency, drugs, etc. d.), the deed must be qualified by the totality of the committed criminal offenses provided for by the relevant norms of the criminal law.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
Cancellation or simplification of customs and border control, including on the basis of international agreements to which the Republic of Kazakhstan is a party, which do not affect the need for customs declaration of goods or other valuables and items and ensuring a permissive procedure and conditions for their movement across the border, other measures aimed at protecting the Kazakh market and suppressing illegal trafficking of criminally punishable contraband items, do not narrow the scope of the criminal law.
In such cases, the criminally punishable movement of goods or other valuables and objects across the customs border should be regarded as smuggling, involving their non-declaration and committed in addition to customs control.
The footnote. Paragraph 12 as amended by Resolution No. 3 of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999.
Compliance with the requirements of the law on the seizure of the property of the accused located outside the territory of the Republic of Kazakhstan, in order to ensure its possible confiscation, is carried out only on the basis of and in accordance with international agreements to which the Republic of Kazakhstan is a party.
When imposing punishments in cases of this category, courts should be guided by the requirements of Article 52 of the Criminal Code, take into account the size and quantity of contraband items, and discuss the issue of imposing additional punishments in the form of deprivation of the right to hold certain positions or engage in certain activities, or in the form of deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class and state awards so that the punishment is justified and fair. In cases stipulated by law, contraband items should be converted into State revenue.
Courts should also keep in mind that funds from the sale of contraband items converted into State revenue are subject to transfer to the State budget in full. Therefore, courts should not allow in sentences instructions on deducting a certain part of the value of contraband items converted into State revenue to any special account.
If the contraband items were sold by the perpetrator, the court must decide whether to recover their value from the convicted person to the state's income and, if this sale is combined with evasion from paying mandatory payments to the state, the corresponding amount of unpaid payments.
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 Eurasian Economic Union and (or) the State Border of the Republic of Kazakhstan using vehicles by persons found guilty of committing criminal offenses provided for in Articles 234, 286 of the Criminal Code, the fate of the vehicles used in smuggling must be resolved in accordance with depending on, have the latter been recognized in accordance with the procedure established by law as material evidence in the case as instruments of a criminal offense?
The footnote. Item 14 as amended by Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated 30.04.1999 No. 3; regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 18.06.2004 No. 3; dated 21.04.2011 No. 1 (effective from the date of official publication); dated 20.04.2018 No. 8 (effective from the date of the first official publication).
In connection with the adoption of this resolution, to invalidate Resolution No. 2 of the Plenum of the Supreme Court of the USSR of February 3, 1978, as amended by Resolutions No. 7 of September 5, 1978 and No. 7 of December 6, 1979 "On Judicial Practice in cases of smuggling."
This resolution shall enter into force from the date of its publication.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
The footnote. The regulatory resolution was supplemented by paragraph 16 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 8 (effective from the date of the first official publication).
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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