NORMS OF THE CUSTOMS CODE OF UKRAINE AS A SUBJECT OF CONSTITUTIONAL CONTROL

Abstract

The article is devoted to the problem of legislative definition of administrative responsibility for customs offence, in particular for actions aimed at illegal exemption from payment of customs duties or reduction of their amount, as well as other illegal actions aimed at evasion of customs duties (Article 485 of the Customs Code). Provisions of Article 485 of the Customs Code of Ukraine are appealed to the Constitutional Court of Ukraine on the grounds of their inconsistency with the Constitution of Ukraine. The authors of the appropriate constitutional complaints substantiate the unconstitutionality of this Article by the fact that its absolutely defined sanction, impossibility of its reduction and absence of alternative types of sanctions for committing the relevant offense do not allow to apply this norm taking into account the principle of individualization of legal responsibility of the offender, what contradicts the second part of the Article 62 of the Constitution of Ukraine. The petitioners also point out that the inconsistency of the sanction of Article 485 of the Customs Code of Ukraine with the principles of individualization of legal responsibility violates the right of a person to own, use and dispose of property (Article 41), the right to a sufficient standard of living for himself and his family, which includes adequate food, clothing, housing (Article 48). The appeal against the provisions of Article 485 of the Customs Code of Ukraine highlights the problem of ensuring the constitutionality of customs legislation of Ukraine in general, because in addition to the disputed provisions of specified articles of this Code, other formal customs offenses provided for in the Customs Code of Ukraine, and contain absolutely certain sanctions and / or are legally indefinite. The disposition of the rule of law set shown in Article 485 of the Customs Code of Ukraine is constructed by the legislator in the form of an “open” (i.e. incomplete) list of illegal actions. In this case, the indication of the illegality of these “other” actions and their purpose does not provide clarity, unambiguity, clarity of the formulated legislative provision, and hence its predictability for the subjects of law. Such use of legislative techniques in determining an administrative offense turns the disposition of the rule of law into a “rubber” and threatens the legality of law enforcement. In addition, such legislative provision is a corruptogenic factor, because it opens the way to mismanagement, arbitrary, i.e. on the basis of subjective assessments, rather than formally defined features, the interpretation of the rule of law. Thus, there are reasons to conclude that since the disposition of the rule of law set forth in Article 485 of the Customs Code of Ukraine is vague and ambiguous, the provisions of this article cannot be considered legally defined in terms of their predictability for law enforcement entities. The sanction of Article 485 of the Customs Code of Ukraine is absolutely defined, as it provides for only one type of administrative penalty for the customs violation, which is defined in this article as a fine, without establishing acceptable limits for its application, and thus does not provide individual legal liability found guilty of an offense under this article. Considering the above, the customs legislation of Ukraine should be developed by establishing relatively specific and alternative sanctions that allows to individualize the administrative responsibility for violating customs rules.