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Customs misdemeanors

Customs misdemeanors
Concept of customs misdemeanors
 
Customs misdemeanors are laid down in the tenth part of the Customs Law. Violation of customs rules – Heading 1, Article 291 – includes acts or omissions, which do not comply with the provisions of the Customs Law and subsidiary acts made thereunder, and as such are subject to punishment.
 
Misdemeanors provisions are prescribed by Articles 292 to 295 of the Customs law.
 
The Law does not divide misdemeanors to more serious and easier ones. Misdemeanors provisions are mostly of a general nature and they are not linked to a precise customs approved treatment. However, taking into account that for the misdemeanors from Articles 292 and 293,  is prescribed not only  a financial penalty, but also a mandatory protective measure of depriving of goods , it may be said that the misdemeanors from Article 292 and 293 are more serious , and this fact determines the competence for a misdemeanor proceeding.
 
Taking into account that misdemeanors are mostly of a general nature, specification of a misdemeanor action is done by applying provisions of Regulation on customs approved treatment of goods (“Official Gazette of the RS” No. 93/10) or regulations linked to a specific treatment of goods, for example Regulation on imports of motor vehicle, different rules and decisions.
 
Responsibility for conducting misdemeanor proceedings
 
Responsibility for conducting misdemeanor proceedings prescribes the Customs Law, by a provision of Article 302. According to that provision, the Misdemeanors Commission of the Customs Post (thereafter called the “Commission”) conducts a misdemeanor proceeding and makes a decision in the first instance. The Commission is established in each customs post, comprising a chairperson and two members. Chairpersons and members of the Commission may have their deputies. The Director of the Customs Administration appoints a chairperson and members of the Commission, as well as their deputies. They are selected among officers of the customs post.
 
Article 306 of the Customs Law prescribes that the Law on Misdemeanors of the Republic of Serbia (hereinafter called “ZOP”) applies to customs misdemeanors.
 
Article 91 (paragraph 1 and 2) of the ZOP provides that a misdemeanor proceeding in the first instance conduct misdemeanor courts if the case is not within the responsibility of competent administrative authorities.  
 
Article 285, paragraph 1 of the ZOP provides that in cases where  only a fine is prescribed for misdemeanors, it may be prescribed by a law that in the first instance a misdemeanor proceeding  conduct administrative authorities.
 
Regarding misdemeanors which are in  exclusive competence of a court ( such as misdemeanors for which a prison punishment is prescribed, for which protective measures may be pronounced, misdemeanors committed by juveniles, misdemeanors committed by persons benefiting a diplomatic immunity, misdemeanors implying a decision on property etc.) an administrative authority cedes the cases to a competent court.
 
From the above-mentioned provisions of the Custom Law and ZOP, it may be concluded that effectively competent authorities for conducting proceedings regarding customs misdemeanors are:
  • Misdemeanor Court, for the misdemeanors provided for in Articles 292 and 293 of the Customs Law,
  • Misdemeanor Commission, for the misdemeanors provided for in Articles 294 and 295 of the Customs Law, 
Regarding determination of a territorial jurisdiction for conducting of misdemeanor proceedings in a misdemeanor court, the rule of the place where a misdemeanor was committed shall be applied. Usually, the territorial jurisdiction of a misdemeanor court does not match with the territorial jurisdiction of a Misdemeanor Commission. A Commission is established depending on the location of a customs office and, as a rule, it encompasses territorial jurisdiction of more misdemeanor courts. 
 
Initiation of a misdemeanor proceeding
 
Misdemeanor proceeding shall be initiated in a court  on the basis of a request for initiation of misdemeanor  proceeding submitted by a competent submitter in the sense of Article 154, paragraph 1 and 2 of the ZOP.
 
Request for initiation of a misdemeanor proceeding is a formal act which must satisfy all conditions prescribed in Article 156 of the ZOP. It is especially important that the time, place and the manner of a misdemeanor are included in the request, as well as the description of the misdemeanor act and circumstances, i.e. all facts  needed for a precise determination of a misdemeanor. A request shall include the regulation that shall be applied and proposed evidence that should be conducted in the proceeding.
 
If a request does not contain all prescribed elements, or it was not submitted in a sufficient number of copies, a court shall invite the submitter to supplement it, within the given deadline, which cannot be longer than 15 days. If conditions determined by the court  are not fulfilled , the request shall be rejected. 
 
When a court or an administrative authority receives a request for initiation of a misdemeanor proceeding, they shall examine conditions for the initiation and decide on further procedure.
 
Article 159 of the ZOP lays down the cases in which a court or administrative authority decides to reject a request. If a court or administrative authority does not reject a request, a court shall decide to initiate the misdemeanor proceeding, or shall adopt a conclusion to cede the case to the competent administrative authority. 
 
Administrative authority, pursuant to Article 287, paragraph 1 of the ZOP, may initiate an ex officio misdemeanor proceeding, immediately after learning of a misdemeanor. In that case, the administrative authority is not linked to the request for initiation of a misdemeanor proceeding relating a person who committed a misdemeanor and the misdemeanor which is the object of a request. 
 
Specificities of customs misdemeanor procedure
 
Specificities of customs misdemeanor procedure are based on the concept of customs misdemeanors (provided for in Article 291 of the Customs Law), the coverage of customs regulations and the objectives of the Customs Law.
 
The customs regulations include: Customs Law and regulations thereunder; Customs Tariff Law and regulations adopted for its implementation; international agreements and regulations adopted for their implementation.
 
The objectives of the Customs Law, provided for in Article 2, are: protection of economic, fiscal and financial interests of the Republic of Serbia; security and protection of the people and environment, protection of the Republic of Serbia from the illegal trade, as well as facilitating of international trade.
 
The first specificity of customs misdemeanors is reflected in the level of prescribed penalties.  Namely, for misdemeanors provided for in Article 292 the amount of penalties range from a single to quadruple value of goods; for misdemeanors provided for in Article 293 – from a single to quadruple amount of unpaid customs duties. For misdemeanors provided for in Article 294 penalties are prescribed from 10.000,00 to 1.500.000,00 dinars, and for misdemeanors provided for in Article 295 from 5.000,00 to 500.000,00 dinars.
 
One of the specificities of customs misdemeanors is reflected in the provision on responsibility of other persons. Namely, a provision of Article 296 prescribes that a person which buys or sells, sales, receives as a gift, hides, takes to store goods in the appropriate storage space, or transports, keeps, uses or, for any reason, acquires goods which, he knows or should know, were the object of misdemeanors referred to in Article 292 to 295 of the Customs law, shall be punished with the same penalty that is prescribed for a person who committed the violation. 
 
A further specificity of customs misdemeanors is reflected in protective measures consisting of depriving of goods and means  of transportation . These measures are taken together with payment of a fine regarding misdemeanors from Articles 292 and 293 of the Customs Law. The said protection measures are prescribed by Articles 298 and 299 regarding means of transportation of goods which are the object of the misdemeanors from Article 292 of the Customs law.
 
Deadlines for initiation and carrying on of misdemeanor proceedings
 
Article 305 of the Customs Law provides for possibility to initiate a misdemeanor proceeding within three years from the date when a misdemeanor was committed (relative expiration), and that  a proceeding may be carried on  until the expiration of six years from the date when a misdemeanor was committed (absolute expiration). These deadlines are longer than the deadlines provided for in Article 76 of the Law on Misdemeanor Procedure (ZOP).
 
Content of a request and evidence in a misdemeanor proceeding
 
A request for initiation  of a misdemeanor proceeding shall contain all important characteristics of the misdemeanor (time, place, and the manner in which a misdemeanor was committed), and the description of the act shall show the character of the case. 
 
An authorized submitter of a request, shall submit all procured evidence, most often an application form for initiation of a misdemeanor proceeding, customs documents, records of authorized officials on a control, transport documents and the like. The fact that the examination of documents undoubtedly shows a violation of the law shall not be sufficient by itself. It is necessary to indicate in a request a concrete violation, which means that a request may be related only to a concrete person and only to a misdemeanor which is subject of the request.
 
If a court initiates a proceeding on the basis of a request having certain deficiencies and during the proceedings finds that the request does not contain some of the important characteristics of the misdemeanor, it is authorized (on the basis of Article 211 of the Law on Misdemeanor Proceedings – ZOP) to schedule a trial to request the authorized submitter to eliminate deficiencies. A request, which is so supplemented, in substance, cannot represent the new request.
 
Customs misdemeanors with a protective measure of depriving of goods
 
A provision of Article 292 of the Customs law provides for a fine ranging from a single to quadruple value of goods:
  1. For a person who brings goods over a border crossing, or when a border crossing is closed for traffic; brings hidden goods over a border crossing (Article 58).   
It is undoubtedly clear, from the above provision that this misdemeanor is done by a person who:
  • brings goods over a border crossing into or out of the customs territory,
  • brings goods over a border crossing into or out of the customs territory when the border crossing is not opened,
  • brings hidden goods over a border crossing into or out of the customs territory.
Illegality of situations mentioned above is based on Article 58 of the Customs law which prescribes that goods may be brought into or out of the customs territory of the Republic of Serbia exclusively over a border crossing and during the time when it is opened.
 
In a request for a misdemeanor proceeding regarding bringing hidden goods over a border crossing, the place where hidden goods were found shall be stated. It cannot be a usual place for luggage (a suitcase, luggage compartment of a vehicle), but, for example, upholstery of a vehicle, the space for a spare wheel, double bottom, special spaces subsequently made for the transport of goods etc.  
 
2. A person who takes goods out of the customs surveillance, avoiding  the customs control (Articles 62, 72, 108, 123 and 131).
 
All goods brought in the customs territory of the Republic of Serbia shall be placed under the customs surveillance, beginning at the moment when goods were brought in, and the customs authority may undertake their control. Goods remain under  the customs surveillance until their status is determined and, regarding foreign goods, until a change of their status. Goods cannot be moved from the place they were originally placed without an authorization of customs authorities. Goods which benefited from  customs privileges, such as lower customs duties approved on the basis of their use for determined purposes, shall be used in accordance with the approval and it shall be deemed that those goods are under the customs surveillance , as well as goods placed under the customs warehousing procedure.
 
Regulation on customs approved treatment of goods provides for a detailed elaboration of any approved treatment of goods and the person who does not respect the prescribed treatment of goods commits a misdemeanor.
 
3. For a person who does not declare goods that brings over a border crossing into the customs territory of the Republic of Serbia or, does not deliver goods to the customs authority (Article 63 and 65);
 
The said misdemeanor includes two forms of illegalities:
  • omission to declare goods that he brings into the customs territory, violating an obligation from Article 63 of the Customs law, providing for declaration of  all goods brought into the customs territory, and for their urgent transport, by routes and means, and within a time limit determined by the customs authority;
  • omission to deliver goods to the customs authority, which is contrary to Article 65 of the Customs law, prescribing that goods brought into the customs territory of the Republic of Serbia shall be delivered to the customs post by the person who brought goods into the customs territory, or the person who assumed responsibility for the transport of goods after they have entered into the customs territory.
4. A person who does not declare all goods subject to customs procedures (Article 84)
 
Goods subject to a customs procedure shall be included in the declaration for that procedure. In the specific description of the act, it shall be stated for which procedure the goods have been declared and what are the specificities of that procedure in comparison with the procedure that should have been applied based on the Regulation on Customs Approved Treatment of Goods. 
 
5. A person who does not declare goods that brings from a free zone or free warehouse into the rest of the customs territory of the Republic of Serbia (Article 203).
 
Article 203 of the Customs law provides for a treatment of goods which, after being placed in a free zone, leave the free zone. This Article also provides for determination of the customs value of goods and calculation of customs debt, depending on how the goods have been treated in a free zone. The request shall contain specification of goods in question, the procedure under which they have been placed and regulations more closely prescribing the treatment of those goods in the Regulation on Customs Approved Treatment of Goods. 
A provision of Article 293 of the Customs Law provides for a fine of single to quadruple amount of customs duties on goods which are the object of a misdemeanor:
 
1) For a person who, by providing false or incorrect information or otherwise, causes that the customs authority  comes to a wrong conclusion, who acquires or attempts to acquire a payment of a lower amount of duties, the preferential tariff treatment, exemption from import duties, benefits in the payment of import and other charges, payment of a reduced amount, repayment or remission of import duties or any other exemption (Articles 23, 30, 31, 84, 87, 104, 112, 113, 150, 152, 169, 172, 177 to 180, 249 and 252); 
 
 Reference norms of the Customs law show clearly that the said misdemeanor, as a general one, relates to general customs procedures, as well as to special customs procedures and that it relates to illegal acts which basically include an intention of a violator to mislead the customs authorities to authorize an approved procedure which implies a payment of lower customs duties, exemption from customs duties or other charges, repayment or remission of customs debt or any other exemption.
 
In describing a misdemeanor, it is necessary to specify the concrete act and the provision of a regulation (Regulation, Decision, etc.) specifying an approved procedure. It is also necessary to find appropriate evidence that a person acting in an illegal way had the intention to obtain a benefit, for example a preferential status, exemption from customs debt etc.
 
2.  For a person who, contrary to the legal provisions, makes a transfer of goods to a third person, delivers goods to be used by a third person, rents out or otherwise uses goods for other purposes than those for  which he used benefits regarding payments of import  duties and other charges. Such goods cannot be given as the security, rented out, or given as guarantee for payment of duties, before the total amount of import duties has been paid (Article 220).
 
The above-mentioned provision provides for sanctions of a person who transfers goods to a third person or uses goods contrary to the objectives, reasons or purposes based on which he benefited the exemption from customs and other duties, or from customs debt. A description of a misdemeanor act shall include specification of facts, as well as evidence. If a third person to whom goods were transferred or ceded was identified, a misdemeanor proceeding from Article 296 of the Customs Law shall be simultaneously initiated against him.
 
If a misdemeanor mentioned under 2) above was committed by a legal entity, a responsible person within the legal entity (the authorized representative of the legal entity) shall pay a fine from 5.000 to 25.000 dinars (paragraph 2. of Article 294). 
As Article 298 of the Customs Law for the above-mentioned misdemeanors provides not only for a fine, but also for a protection measure of depriving of goods and other objects of the misdemeanor, misdemeanor proceedings are the exclusive competence of misdemeanor courts.
 
Misdemeanors for which only a fine is prescribed
 
Article 294 of the Customs law, paragraph 1, points 1 to 19, contains misdemeanors for which fines ranging from 10.000 to 1.500.000 dinars are prescribed, and in paragraph 2 the same Article provides for a fine up to 25.000 dinars for a responsible person (authorized representative of… within a legal entity.
 
Misdemeanors provisions provides for penalties for a person who by his acting, or omission to act in respect of declaration of goods, procedure of transport or delivery  of goods, and by violation of  provisions relating to procedures having economic impact, commits an act  which represent a customs misdemeanor. Certain incriminated actions include several forms of illegality that are discussed in the analysis of such violations.
 
Misdemeanor provisions contained in Article 295, paragraph 1, points 1 to 13, provide for fines ranging from 5.000 to 500.000 dinars. These provisions most often incriminate irregularity in the customs proceedings and disregard of obligations. As for such misdemeanors  a protection measure of depriving of goods  is not prescribed, but only a fine, proceedings are within the competence of the Commission for misdemeanors of a customs post.  
 
Article 297 provides  for the imposition of a sentence on the spot under the prescribed conditions.  Provisions of the Law on Misdemeanors of the Republic of Serbia (ZOP) apply on initiation of the procedure and the procedure itself, within a Misdemeanor Court as well as within a Misdemeanor Commission.
 
 
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