THE MOMENT OF COMPLETION OF CRIMINALLY PUNISHABLE SMUGGLING: ISSUES OF LEGAL QUALIFICATION

Abstract

The article examines the criteria for determining the moment of completion of smuggling (Articles 201–201-4 and 305 of the Criminal Code of Ukraine) through an analysis of the blanket feature of the objective side – ‘movement across the customs border of Ukraine’. The relevance of the problem stems from inconsistency in case law regarding the legal qualification of cases in which items are detected at a border crossing point or during customs control. The purpose of the article is to formulate a scientifically sound criterion for determining when smuggling is completed and an algorithm for distinguishing between completed and attempted criminal offences depending on the direction of movement of the relevant items. The methodological basis of the study consists of a dogmatic analysis of criminal law and customs regulations, a generalisation of judicial practice, and a comparative legal analysis of the legislation and judicial practice of individual EU countries. It has been established that in the judicial practice of the European Union countries, smuggling, in particular of narcotic drugs, is recognised as a completed criminal offence upon actual importation or exportation across the customs border. For example, in Germany, France and Spain, the import of drugs is recognised as completed only after an unlawful crossing of the border, and in Poland – upon actual importation in violation of the law.
The article establishes that European judicial practice generally follows the rule that smuggling is complete when items are actually moved across the border, and actions aimed at moving items are classified as attempted smuggling. The conclusion is justified that, according to the current version of Article 305 of the Criminal Code of Ukraine, smuggling is completed from the moment of actual illegal crossing of the customs border, while the detection of items before such crossing constitutes an attempt. The study substantiates that the ‘procedural’ approach (linking to the completion of customs control or clearance) has doctrinal value; however, without legislative refinement of criminal law it creates risks of violating the principle of legal certainty.