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DECISION OF THE SECOND SENATE OF THE CONSTITUTIONAL COURT OF UKRAINE

of June 15, 2022 No. 4P (II)/2022

On case on Barsegyan Gevork Senekerimovich and Linenko Natalya Nikolaevna's constitutional claims concerning compliance of the Constitution of Ukraine (constitutionality) of Article 485 of the Customs code of Ukraine (concerning individualization of legal responsibility)

Case No. 3-321/2019(7780/19, 91/21)

The second senate of the Constitutional Court of Ukraine in structure:

Golovaty Sergey Petrovich (chairman of meeting),

Gorodovenko Victor Valentinovich,

Lemak Vasily Vasilyevich,

Moysik Vladimir Romanovich,

May Day Oleg Alekseevich (speaker),

Slidenko Igor Dmitriyevich,

Yurovskaya Galina Valentinovna (speaker),

considered at plenary meeting case on Barsegyan Gevork Senekerimovich and Linenko Natalya Nikolaevna's constitutional claims concerning compliance of the Constitution of Ukraine (constitutionality) of Article 485 of the Customs code of Ukraine.

Having heard May Day A.A. judges-speakers, Yurovskaya G. V. and having researched case papers, in particular line items which stated: chairman of the Verkhovna Rada of Ukraine Razumkov D. A.; scientists: The Dnipropetrovsk state university of internal affairs - the doctor of jurisprudence, professor, the vice rector Nalivayko L. R., the Kiev national trade and economic university - the Doctor of Engineering, professor Merezhko N. V., the doctor of jurisprudence, associate professor Zapototskaya A. V., the doctor of jurisprudence, professor Zadorozhnaya of G.V., the Kiev national university of Taras Shevchenko - Candidate of Law Sciences, the assistant to department of the financial law of law department Marinchak E. S., National aviation university - the doctor of jurisprudence, professor Kunev Yu. D., National university "Lviv Polyequipment" - the doctor of jurisprudence, professor, the head of the department of the constitutional and international law of educational and scientific institute of the right, psychology and innovative education Kovalchuk V. B., Candidate of Law Sciences, the associate professor of the constitutional and international law of educational and scientific institute of the right, psychology and innovative education Zabokritsky I. I., National academy of internal affairs - Candidate of Law Sciences, the associate professor, professor of department of the criminal law Vartiletskaya I. A., Candidate of Law Sciences, associate professor, head of the department of public management and administration Shepherd I.D., Candidate of Law Sciences, research associate of department of the organization of scientific activities and protection of intellectual property rights Palamarchuk K. V., university of the Public fiscal service of Ukraine - the doctor of jurisprudence, professor, the acting chief of department of the administrative right and process and customs safety Ryabchenko A. P., Candidate of Law Sciences, associate professor, head of department of enhancement of counteraction to customs offenses of Research institution of fiscal policy of Hom V. A. doctor of jurisprudence, associate professor, leading researcher of department of researches of general questions of fiscal policy of Research institution of fiscal policy Punda A. A., the Kharkiv national economic university of Semyon Kuznets - the Doctor of Economics, the associate professor, the head of the department of customs affairs and the taxation Tyshchenko V. F., the Kharkiv national university of internal affairs - Candidate of Law Sciences, the associate professor, the head of the department of law-enforcement activities and police of faculty No. 6 Panova I. V.; members of Scientific and advisory council of the Constitutional Court of Ukraine: Candidate of Law Sciences Grey M. I., Candidate of Law Sciences, associate professor Terletsky D. S., Candidate of Law Sciences Tomkina A. A., doctor of jurisprudence, professor Havronyuk M. I.; special advisers of the Constitutional Court of Ukraine: chairman of the Constitutional Court of the Republic of Moldova (2011-2017) to Tenasa A. Chairman of the Constitutional Court of Georgia (2006-2016) Papuashvili G., Constitutional Court of Ukraine

established:

1. Persons of law on the constitutional claim Barsegyan G. S., Linenko N. M. - appealed to the Constitutional Court of Ukraine with survey requests on compliance of the Constitution of Ukraine (constitutionality) of Article 485 of the Customs code of Ukraine (further - the Code) according to which:

"Article 485. The actions directed to illegal exemption of customs payments or reduction of their size, and also other illegal actions directed to evasion from customs payment

1. The statement in the customs declaration for the purpose of illegal exemption of customs payments or reduction of their size of false data of rather essential conditions of the external economic agreement (contract), weight (taking into account inconsequential losses under proper storage conditions and transportations) or quantities, countries of source, the sender and/or the receiver of goods, inveracious data necessary for determination of commodity code according to UKT foreign trade activities and its customs value, and/or provision with the same purpose to customs authority of the documents containing such data, or failure to pay customs payments in time, established by the law, or other illegal actions directed to evasion from customs payment and also use of goods concerning which privileges on customs payment are provided, in other purposes, than in connection with what such privileges were provided, -

involve imposing of penalty in the amount of 300 percent of outstanding amount of customs payments".

Barsegyan G. S. and Linenko N. M. consider that article 485 of the Code does not correspond to Article part one 41, Article 48, of part two of article 61 of the Constitution of Ukraine.

As the constitutional claims of Barsegyan G. S., Linenko N. M. concern the same question, the second senate of the Constitutional Court of Ukraine determination of June 16, 2021 No. 4-up (II)/2021 combined the constitutional productions on cases in one constitutional production.

1.1. From contents of the constitutional claims and the materials attached to them the following is seen.

Barsegyan G. S. appealed to Shevchenkovsky district court of the city of Kiev with the claim to the Kiev customs of the Public fiscal service of Ukraine, the Public fiscal service of Ukraine (further - GFS of Ukraine) in which he asked to repeal the resolution on the case of customs offense of September 21, 2017 No. 0232/12500/17 of the Kiev GFS customs of Ukraine and the resolution GFS of Ukraine of October 21, 2017 about imposing on Barsegyan G. S. of penalty in the amount of 300 percent of outstanding amount of customs payments that constitutes 1241821, 17 UAH; stop proceeedings about involvement of the claimant - the representative of the company customs applicant of M-AND-S Limited liability company to the administrative responsibility determined by the sanction of article 485 of the Code, due to the lack in its actions of structure of administrative offense.

Claims of Barsegyan G. S. are left by the decision of Shevchenkovsky district court of the city of Kiev of March 11, 2019 without satisfaction. The specified resolution of the Trial Court is left by the resolution of the sixth Appeal administrative court of September 10, 2019 without change.

1.2. In the constitutional claim of Barsegyan G. S. it is specified that "the sanction of regulation of part one of Article of 485 shopping malls of Ukraine limited the right to individualization of its legal responsibility guaranteed to the Complainant by article 61 of the Constitution of Ukraine. The legislator, without having provided opportunity for the complainant to refer during consideration of the case about customs offense and during legal proceedings to specific circumstances of making of offense, property status, and also to other circumstances which could mitigate its responsibility and affect disciplinary measures, thereby allowed restriction of its constitutional rights. Without having given the chance to the complainant to try to obtain appointment to him penalty in the amount of, proportional to circumstances of specific offense, the appealed regulation of shopping mall of Ukraine made impossible individualization of collection and ensuring fair treatment of case".

Also, according to the person of law on the constitutional claim, "not limited (only the triple size of the amount of unpaid customs payments) the size of penalty for the customs offense provided by part one of Article of 485 shopping malls of Ukraine turns from responsibility measure into means of deprivation of person of its property, suppression of economic independence and initiative, excessive restriction of the right to sufficient living standards that does not conform to requirements of articles 41 and 48 of the Constitution of Ukraine. The certificate of it is assignment on the Claimant based on part one of Article of 485 shopping malls of Ukraine - penalty, enormous by the size (in the amount 1241821, of 17 UAH) that in the conditions of establishment of subsistence minimum on one able-bodied person in the amount of the 2nd 102, 00 UAH (as of 01.12.2019) look, at least, unfair".

1.3. Linenko N. M. appealed to Leninsky district court of the city of Zaporizhia with the claim to the GFS Zaporizhia customs of Ukraine for cancellation of the resolution on the case of customs offense of November 26, 2019 according to which the customs applicant of Limited liability company "TEKHNOKH_MREAGENT" Linenko N. M. is brought No. 0151/11200/19, to the administrative responsibility under article 485 of the Code using administrative punishment in the form of administrative penalty in the amount of 300 percent of outstanding amount of customs payments that constitutes 41607, 96 UAH.

By the decision of Leninsky district court of the city of Zaporizhia of July 1, 2020 left without change by the resolution of the Third Appeal administrative court of October 7, 2020 satisfaction of the administrative claim of Linenko N. M. it is refused in full. By determination of the Supreme Court as a part of board of judges of Cassation administrative court of February 11, 2021 to Linenko N. M. it is refused opening of cassation proceeedings based on Item of 1 part one of article 333 of the Code of administrative legal proceedings of Ukraine - the writ of appeal is made about the judgment which is not subject to cassation appeal.

1.4. In the constitutional claim of Linenko N. M. claims that article 485 of the Code does not determine alternative types of sanctions for making of the corresponding offense that does not allow to apply this regulation taking into account the principle of individualization of legal responsibility of the offender that contradicts part two of article 61 of the Constitution of Ukraine".

Besides, according to Linenko N. M., the sanction determined by article 485 of the Code violates 48 Constitutions of Ukraine established in Articles 41, the right of everyone to own, use and dispose of the property and the right to sufficient living standards for itself and the family, including sufficient nutrition, clothes, housing.

1.5. The Verkhovna Rada of Ukraine as the participant of the constitutional production, provided explanations on the questions which are brought up in Barsegyan G. S. and Linenko N. M. constitutional claims, having specified that:

- "unlike those penalties which are determined for customs offenses in accurately fixed size which constitutes equivalent of number of free minima of the income of citizens the sanction of article 485 of the Code creates formal binding to public harm of committed administrative offense and is caused by availability of the special illegal purpose of actions of the customs applicant concerning the statement of false data and illegal exemption of customs payments or reduction of their size.

Specified gives the grounds for conclusion that, fixing the corresponding sanctions for different types of customs offenses, the legislator proceeds from the principle of individualization of legal responsibility which puts into dependence on form of fault of the offender and weight of those effects which are caused by offense";

- "the procedural guarantees provided by the customs legislation do not exclude possibility of establishment of the differentiated approach to purpose of administrative punishment in the form of penalty in proportion to committed customs offense, and also need of establishment of all circumstances important for the correct permission of case";

- "proceeding from understanding the Constitutional Court of Ukraine the rights to sufficient living standards as social right, it is possible to draw conclusion on inaccuracy of the reference of the person of law on it on the constitutional claim as the relations concerning establishment, and also payments of penalty as type of the administrative responsibility, are not included into its content".

1.6. Persons of law on the constitutional claim raised before the Constitutional Court of Ukraine question of compliance of the Constitution of Ukraine (constitutionality) of article 485 of the Code in general.

Having researched contents of the constitutional claims, the Constitutional Court of Ukraine determined that they contain arguments concerning discrepancy of the Constitution of Ukraine only of paragraph two of the specified article of the Code which determines the sanction for the actions directed to illegal exemption of customs payments or reduction of their size, and also other illegal actions directed to evasion from customs payment.

Considering brought, the Constitutional Court of Ukraine considers subject of the constitutional control in this case paragraph two of article 485 of the Code.

2. Resolving issue concerning compliance of the Constitution of Ukraine (constitutionality) of paragraph two of article 485 of the Code, the Constitutional Court of Ukraine proceeds from the following.

2.1. "Human rights and freedoms and their guarantees determine content and orientation of activities of the state by the Fundamental Law of Ukraine. The state answers to the person for the activities. Approval and providing human rights and freedoms is the main obligation of the state" (Article part two 3); "in Ukraine the principle of supremacy of law is recognized and is effective"; "The constitution of Ukraine has the highest legal force. The laws and other regulatory legal acts are adopted on the basis of the Constitution of Ukraine and shall correspond to it" (parts one, the second Articles 8); "constitutional rights and freedoms are guaranteed and cannot be cancelled" (Article part two 22); "nobody can be illegally deprived of the property right. The right of private property is firm" (Article part four 41); "legal responsibility of person has individual nature" (Article part two 61); only are determined by the laws of Ukraine: "rights and freedoms of man and citizen, guarantees of these rights and freedoms; fundamental obligations of the citizen"; "bases of civil responsibility; the acts which are crimes, administrative or disciplinary offenses and responsibility for them" (Items 1, 22 parts one of Article 92).

2.2. Constitutional court of Ukraine, considering question of attraction of persons to the administrative responsibility, noted that:

-" <...> the administrative responsibility in Ukraine and the procedure of administrative prosecution are based on the constitutional principles and legal presumptions which are caused by recognition and action of the principle of supremacy of law in Ukraine" (the first offer of paragraph one of subitem 4.1 of item 4 of motivation part of the Decision of December 22, 2010 No. 23-rp/2010);

-" <...> the public advantage of administrative punishments for administrative offenses consists not in replenishment of the government budget, and in providing the constitutional law and order, safety of society and the rights and freedoms of each personality" [the first offer of paragraph one of subitem 2.5 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine (The second senate) of July 21, 2021 No. 3-r (II)/2021].

2.3. The constitutional court of Ukraine notes that the Verkhovna Rada of Ukraine has powers to adopt the laws with regulation of the bases and procedure for attraction of persons to the administrative responsibility, adhering to the constitutional regulations and the principles.

That is" <...> the parliament can adopt legal acts only in development of the constitutional instructions, concretizing and disaggregating them" (the first offer of the paragraph of third subitem 2.2 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine of September 16, 2020 No. 11-r/2020).

3. On part two of article 61 of the Constitution of Ukraine legal responsibility of person has individual character.

Constitutional court of Ukraine in the Solution of November 2, 2004 No. 15-rp/2004, researching the principle of individualization of legal responsibility in the context of the solution of question of constitutionality of article 69 of the Criminal code of Ukraine on the case of appointment of milder pinishment as court, noted the following:

-" <...> The penalty imposed by court shall correspond to degree of public danger of crime, circumstances of its making and to consider the identity of the guilty person, that is to be fair. About it 3 parts one of article 65 of the Code according to which the court imposes penalty witness Item, considering severity of the committed crime, the identity of the guilty person and circumstance commuting and aggravating penalty.

According to the principle of individualization of legal responsibility in case of assignment of punishment the court shall consider the facts of the case (both aggravating, and commuting penalty) concerning all persons, irrespective of severity of the committed crime <...>" (paragraphs of the seventh, eighth of subitem 4.2 of item 4 of motivation part);

-" <...> establishment by the legislator of undifferentiated punishment and impossibility of its decrease does not allow to apply punishment to persons who committed crimes of small weight, taking into account weight of the committed crime, the extent of the caused damage, form of fault and motives of crime, property status of the defendant and other essential circumstances that is violation of concept of justice of punishment, its individualization and proportionality" (the paragraph of the sixth of Item 5 of motivation part).

3.1. The constitutional court of Ukraine takes into account to the practician of the European Court of Human Rights who repeatedly specified that determined in the Convention on human rights protection and fundamental freedoms of 1950 (further - the Convention) the concepts "criminal charge", "criminal offense" have autonomous value". With respect thereto the European Court of Human Rights according to the criteria created by it independently determines whether this or that act belongs to criminal offense.

Criteria based on which the European Court of Human Rights establishes whether to apply criminal aspect of article 6 of the Convention are: 1) legal qualification of act in the national legal system [that is clarification of how qualify act in the national right: criminal offense (crime), administrative offense, disciplinary, etc.]; 2) offense nature; 3) nature and severity (severity) of punishment which can be applied to person [the decision in the matter of Engel and others v. The Netherlands of June 8, 1976 (the statement No. No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72), §82, §83]. The first criterion is only initial and has no the determining value. At the same time the second and third criteria are decisive for clarification of whether act under determination "criminal offense" in understanding of the Convention falls. For application of article 6 of the Convention in aspect of understanding of the concept "criminal charge" it is enough that the offense in character was considered "criminal" according to the Convention or that for committed offense punishment which in character and degrees of severity belonged in general to the "criminal" sphere [the decision in the matter of Lutz v was applied to person. Germany of August 25, 1987 (the statement No. 9912/82), §55].

Thus, on common practice of the European Court of Human Rights such administrative punishments as administrative detention and considerable administrative penalties, are proportional to criminal penalty [decisions for Engel and others v. The Netherlands of June 8, 1976 (the statement No. No. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72), Gurepka against Ukraine of September 6, 2005 (the statement No. 61406/00), A. Menarini Diagnostics S.R.L. v. Italy of September 27, 2011 (the statement No. 43509/08)].

3.2. Considering practice of the European Court of Human Rights and considering that the sanction of article 485 of the Code in the form of imposing of penalty in the amount of 300 percent of outstanding amount of customs payments is disproportionate to criminal penalty, the Constitutional Court of Ukraine came to conclusion that previously formulated approaches to understanding of the principle of individualization of legal responsibility in case of criminal sentencing are applicable and within this constitutional production.

Considering brought the Constitutional Court of Ukraine notes that the principle of individualization of legal responsibility in the procedure of attraction of person to the administrative responsibility based on article 485 of the Code shall be shown not only in accountability of person guilty of making of offense, but also in appointment to it type and the amount of punishment with obligatory accounting of nature of committed illegal act, form of fault, the characteristic of this personality, possibility of compensation of the caused damage, the availability of the circumstances mitigating or aggravating responsibility.

4. In a number of instructions of the Fundamental Law of Ukraine it is told about "interests of homeland security", "economic safety", "public order" and other phenomena which requirement of protection is the lawful (legitimate) purpose of application of restrictions of constitutional rights and freedoms of man and citizen.

In the Solution of the Constitutional Court of Ukraine (The second senate) of July 21, 2021 in this context it is noted No. 3-r (II)/2021 that the types of administrative punishments established by the Code are aimed at providing the constitutional law and order, safety of society, human rights and freedoms and are proper measures as shall promote goal achievement of the administrative responsibility that is caused by requirements of protection of customs interests of Ukraine and customs safety (the paragraph the fifth subitem 2.3 of Item 2 of motivation part).

4.1. Under article 6 of the Code customs interests of Ukraine are national interests of Ukraine which ensuring and realization is reached by implementation of customs affairs; customs safety is condition of security of customs interests of Ukraine.

The established procedures and conditions of movement of goods through customs border of Ukraine, their customs control and customs clearance, use of mechanisms of tariff and non-tariff regulation of foreign economic activity, collection of customs payments, maintaining customs statistics, exchange of customs information, conducting the Ukrainian classification of goods of foreign economic activity, implementation according to the law of the state control of non-food products in case of its import to customs area of Ukraine, prevention and counteraction to smuggling, fight against customs offenses, the organization and ensuring activities of customs authorities and other actions directed to realization of the state customs policy constitute customs affairs (part one of article 7 of the Code).

For the purpose of protection of customs interests and customs safety of Ukraine for customs offense the Code establishes the administrative responsibility.

Under article 461 of the Code for customs offense administrative punishments in the form of the prevention, penalty and confiscation of goods, vehicles of commercial appointment - direct objects of customs offense, goods and vehicles with specially made storages (hiding places) which were used for concealment of goods - direct objects of customs offense from customs control (except vehicles of commercial appointment which are used only for transportation of passengers and goods through customs border of Ukraine along certain routes and flights which are performed according to the schedule of movement based on the international treaties signed according to the law), and also vehicles can be imposed, which were used for movement of goods - direct objects of customs offense through customs border of Ukraine out of the location of customs authority.

That is the lawful purpose of establishment of restrictions of rights and freedoms of man and citizen in the field of the customs relations and involvement of the perpetrator to responsibility for violation of customs rules is requirement of protection of customs interests and customs safety of Ukraine.

4.2. According to article 487 of the Code production on cases on customs offense is performed according to the Code, and in part which is not regulated by the Code, according to the legislation of Ukraine on administrative offenses.

By instructions of the Code of Ukraine about administrative offenses (further - КУоАП) it is determined that:

- administrative offense (offense) the action or failure to act encroaching on public order, property, the rights and freedoms of citizens, on established procedure of management and for which the law provides the administrative responsibility (Article part one 9) is recognized illegal, guilty (intentional or careless);

- administrative punishment is measure of responsibility and is applied for the purpose of education of person who made administrative offense in the spirit of compliance with laws of Ukraine, respect for rules of the hostel, and also the prevention of making of new offenses, both the offender, and other persons (Article 23);

- collection for administrative offense is imposed in the limits set КУоАП and other laws of Ukraine; when imposing collection nature of committed offense, the identity of the violator, the degree of his fault, property status, circumstances mitigating and aggravating responsibility are considered (Article 33).

According to the Code it is determined that:

- production tasks on cases on customs offense is timely, comprehensive, complete and objective clarification of circumstances of each case, the decision it with observance of requirements of the law, ensuring accomplishment of the issued decree, and also identification of the reasons and conditions promoting making of customs offenses and prevention of such offenses (Article part one 486);

- the official when considering the case about customs offense shall find out: whether the administrative offense was made whether this person is guilty of its making, whether it is subject to the administrative responsibility, whether there are circumstances mitigating and/or aggravating responsibility whether there are bases for release of person who made offense from the administrative responsibility and also to find out other circumstances important for the correct permission of case (Article 489).

The Posutny analysis of the given regulations of the Code and КУоАП, governing the relations on involvement of person to the administrative responsibility for customs offense, demonstrates that in general these regulations shall develop, concretize and disaggregate the principles of the Fundamental Law of Ukraine, in particular, the principle of individualization of legal responsibility determined by part two of article 61 of the Constitution of Ukraine.

4.3. Constitutional court of Ukraine, estimating the disputed instruction of article 485 of the Code on compliance to the Fundamental Law of Ukraine, first of all acknowledges the establishment possibility in acts of the public legislation (administrative, criminal, etc.) absolutely certain and (or) uncontested sanctions that, certainly, is the positive phenomenon in case subject of law enforcement is the authority, other than court.

At the same time the Constitutional Court of Ukraine once again emphasizes that in legislative regulation of the relations on involvement of person to administrative or criminal liability the constitutional principle of individualization of legal responsibility shall be observed.

Thus, establishment in acts of the public legislation of absolutely certain and (or) uncontested sanctions shall is balanced to be combined with provision to the subject of imposing of administrative punishment or criminal penalty of diskretion in question of determination of type and the amount of collection or punishment taking into account nature of committed illegal act, form of fault, the characteristic of person guilty of making of offense, possibility of compensation of the caused damage, the availability of the circumstances mitigating or aggravating responsibility.

4.4. The Verkhovna Rada of Ukraine based on Item 22 parts one of article 92 of the Constitution of Ukraine has powers to determine what acts are administrative offenses and to establish responsibility for them.

Article 485 of the Code determines the administrative responsibility for the actions and (or) failure to act directed to illegal exemption of customs payments or reduction of their size, and also other illegal acts directed to evasion from customs payment.

In paragraph one of the specified article of the Code it is established what actions and (or) failure to act can have the investigation involvement of person to responsibility. In the paragraph the second the same article of the Code the sanction - penalty in the amount of 300 percent of outstanding amount of customs payments is determined.

4.5. Estimating the disputed instruction of article 485 of the Code regarding respect for the principle of individualization of legal responsibility, the Constitutional Court of Ukraine takes into account that this instruction establishes responsibility for number of the illegal acts determined in paragraph one of the same article of the Code. These acts, though have the main combining sign, namely the purpose - "evasion from customs payment", are different in degree of public harm, content and so forth.

Despite such variety of the objective side of structure of this administrative offense, the sanction of article 485 of the Code has signs of absolutely certain and is uncontested, that is such which establishes only one type of collection - penalty which besides is determined in the established size of percent.

At the same time because of absence in the disputed instruction of article 485 of the Code of other types of penalties and impossibility of change of the size of percent by which the penalty is determined individualization of legal responsibility taking into account nature of committed illegal act, form of fault, the characteristic of person guilty of making of offense, possibility of compensation of damage suffered, availability of the circumstances mitigating or aggravating responsibility is excluded.

The need for individualization of the size of penalty is essential in cases when this size is essential owing to what its application can be excessive intervention in a row of constitutional rights of the perpetrator.

Deprivation by the disputed instruction of article 485 of the Code of the subject of imposing of administrative punishment (customs authority) of possibility of individualization of administrative punishment taking into account all set of the facts of the case, according to the Constitutional Court of Ukraine, makes impossible realization of the principle of individualization of legal responsibility during involvement of person to the administrative responsibility based on article 485 of the Code and does not create the due legislative basis for application of proportional measures to the violator of customs rules.

Considering stated, the Constitutional Court of Ukraine came to conclusion that the paragraph two of article 485 of the Code contradicts part two of article 61 of the Constitution of Ukraine.

5. According to article 41 of the Constitution of Ukraine everyone has the right to own, use and dispose of the property (part one); the right of private property is acquired according to the procedure, determined by the law (part two); nobody can be illegally deprived of the property right; the right of private property is indestructible (part four).

On part one of Article 64 of the Fundamental Law of constitutional rights and freedom of man and citizen cannot be limited, except the cases determined by the Constitution of Ukraine.

5.1. Considering question of admissible borders of restriction of the property right guaranteed by the Constitution of Ukraine, the Constitutional Court of Ukraine noted:

- "the property right is not absolute, that is can be limited, however intervention in this right can be performed only based on the law with respect for the principle of legal definiteness and pro-rata rule which requires achievement of reasonable ratio between interests of person and society. In case of ownership limitation for the benefit of society such measures which are less burdensome for the rights and freedoms of individuals from all measures, available to application can be considered as pro rata" [the paragraph of the seventh of subitem 2.3 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine (The first senate) of June 5, 2019 No. 3-r (I)/2019];

-" <...> in case of ownership limitation for the benefit of society not any less burdensome are necessary for the rights and freedoms of persons of measure, and those from them which are capable to achieve the legitimate goal at the same high-quality level. That is the legislator shall choose that type of administrative punishment which is less burdensome for the rights and freedoms of person in specific case, and first of all, shall determine adequate measure of the administrative responsibility for achievement of its purpose whereas courts provide individualization of such responsibility depending on the facts of the case within legislatively certain sanction" [paragraph one of subitem 2.4 of Item 2 of motivation part of the Solution of the Constitutional Court of Ukraine (The second senate) of July 21, 2021 No. 3-r (II)/2021].

5.2. According to article 1 of the First protocol to the Convention each physical person or legal entity has the right to own peacefully the property; nobody can be dispossessed by the differently, as for the benefit of society and on the conditions provided by the law and the general principles of international law (paragraph one); the previous provisions do not limit at all the right of the state to enact such laws which it considers it necessary to exercise control of use of property according to common interests or for ensuring tax payment or other charges or penalties (paragraph two).

The European Court of Human Rights specified that" <…> to conform to the requirement of proportionality, severity of sanctions shall correspond to weight of offenses for which they are appointed <…>. The principle of proportionality (proportionality) shall be observed not only in case of determination of the regulations concerning severity of the sanction but also in case of assessment of those factors which shall be taken into account in case of determination of the sanction <…>" [the decision in the matter of Imeri v. Croatia of June 24, 2021 (the statement No. 77668/14), §84].

Besides, according to the European Court of Human Rights, article 1 of the First protocol to the Convention requires that any intervention reasonably answered the [lawful] purpose. In other words, it is necessary to reach "fair balance" between requirements of total requirements of society and requirements of protection of fundamental human rights. This balance will not be reached if person or persons whom it concerns has to bear personal and excessive burden [see, in particular, decisions for The Former King of Greece and Others v. Greece [GC] of November 28, 2002 (the statement No. 25701/94), ECHR 2000-XII, §79, §82; Jahn and Others v. Germany [GC] of June 30, 2005 (the statement No. No. 46720/99, 72203/01, 72552/01), ECHR 2005-VI, §81-94; Gogitidze and Others v. Georgia of May 12, 2015 (the statement No. 36862/05), §97].

5.3. In the decision in the matter of Krayev against Ukraine of January 13, 2022 (the statement No. 72858/13) the European Court of Human Rights, having stated that the amount of the penalty imposed on the declarant for customs offense (part one of article 483 of the Code) constituted excessive intervention in its property right contrary to requirements of article 1 of the First protocol to the Convention, noted, in particular, that:

- imposing of penalty as such will constitute intervention in the right guaranteed by paragraph one of article 1 of the First protocol to the Convention as it deprives the corresponding person of property, namely the amount which needs to be paid (§23);

- to correspond to article 1 of the First protocol to the Convention, the measure [intervention] shall answer three conditions: it shall be lawful [to be based on the instruction of the right], to pursue the lawful aim and to provide fair balance between common interests of society and the fundamental rights of person (§24);

- according to part one of article 483 of the Code according to which the declarant was found guilty penalty in the amount of, equal to the goods cost which is very large sum, - and confiscation of goods were obligatory actions without any exceptions; lack of diskretion of it did not give to the Ukrainian courts the chance to consider individual circumstances that deprives of sense any assessment; The European Court of Human Rights already noted that the similar tough system is not capable to provide the necessary fair balance between requirements of general interest and protection of the right of person to property (§31).

5.4. Considering instructions of the Fundamental Law, the given legal line items of the Constitutional Court of Ukraine and practice of the European Court of Human Rights, the Constitutional Court of Ukraine notes that determined by the Verkhovna Rada of Ukraine within its constitutional powers (Article 91, Item 22 parts one of article 92 of the Constitution of Ukraine) the administrative responsibility for the actions and (or) failure to act directed to illegal exemption of customs payments or reduction of their size, and also other illegal acts directed to evasion from customs payment, stipulated in Clause 485 Codes, certainly, is socially necessary and pursues the lawful aim - protection of customs interests and customs safety of Ukraine.

One more condition of compliance of the disputed instruction of article 485 of the Code to the Fundamental Law of Ukraine is ensuring proper normative reasons with it for establishment of fair balance between public interest in protection of customs safety of Ukraine and protection of the property right of person on which administrative punishment in the form of penalty is imposed.

According to case papers based on article 485 of the Code the penalty in the amount of 300 percent of outstanding amount of customs payments was imposed on Barsegyan G. S. that constitutes 1241821, 17 UAH. The size of the penalty imposed on Linenko N. M. constituted 41607, 96 UAH.

The constitutional court of Ukraine states that in 2017-2019 (the period in which the specified administrative punishments were imposed on Barsegyan G. S. and Linenko N. M.) the size of subsistence minimum for able-bodied persons in month changed from 1600 UAH to 2102 UAH, and minimum wage in monthly size - from 3200 UAH to 4173 UAH.

That is it is about repeated excess by the sizes of the penalties imposed on Barsegyan G. S. and Linenko N. M. officially determined by the state on one calendar month of the sizes of subsistence minimum for able-bodied persons and minimum wage.

Their own means were source of payment of penalties for Barsegyan G. S. and Linenko N. M., undoubtedly. Therefore imposing on them of penalties for committed offenses is intervention of the state in the property right guaranteed by the Fundamental Law of Ukraine.

Estimating paragraph two of article 485 of the Code in the context of creation of conditions for non-admission of excessive intervention in the property right of person by it for the purpose of ensuring fair balance between requirements of public interest in protection of customs interests and customs safety of Ukraine, on the one hand, and protection of the property right of person - about other, Constitutional Court of Ukraine came to conclusion that the specified instruction of article 485 of the Code does not provide desirable flexibility in actions and decisions of public authority during determination of the size of penalty concerning the offender taking into account all facts of the case. Therefore owing to application of the disputed instruction of article 485 of the Code the fair balance between requirements of public interest and protection of the property right of person is not provided, and this instruction is normative basis for excessive intervention in the property right guaranteed by the Fundamental Law of Ukraine.

Considering stated, the Constitutional Court of Ukraine came to conclusion that the paragraph two of article 485 of the Code contradicts parts one, the fourth article 41 of the Constitution of Ukraine.

6. According to part two of article 152 of the Constitution of Ukraine, article 91 of the Law of Ukraine "About the Constitutional court of Ukraine" the laws, other acts or their separate provisions recognized as unconstitutional lose force from the date of acceptance by the Constitutional Court of Ukraine of the decision on their illegality if other is not established by the decision, but not earlier than day of its acceptance.

The constitutional court of Ukraine considers that recognition unconstitutional paragraph two of article 485 of the Code will make impossible accountability of persons for the actions and (or) failure to act directed to illegal exemption of customs payments or reduction of their size, and also other illegal acts directed to evasion from customs payment.

The constitutional court of Ukraine considers it expedient to delay for the purpose of non-admission of violation of customs interests and customs safety of Ukraine loss of force the paragraph the second article 485 of the Code for six months from the date of acceptance by the Constitutional Court of Ukraine of this Decision.

The Verkhovna Rada of Ukraine from the date of adoption of this decision, but no later than six months from the date of acceptance by the Constitutional Court of Ukraine of this decision, shall give the normative regulation established by the paragraph the second article 485 of the code which is acknowledged unconstitutional, in compliance with the Constitution of Ukraine and this decision.

Considering stated and being guided by Articles 147, of 150, 151-1, 151-2, 152, 153 Constitutions of Ukraine, based on Articles 7, of 32, of 36, of 65, of 67, of 74, of 84, of 88, of 89, of 91, of 92, of 94, 97 Laws "About the Constitutional Court of Ukraine"

Constitutional court of Ukraine

decided:

1. Recognize not corresponding to the Constitution of Ukraine (is unconstitutional), paragraph two of Article 485 of the Customs code of Ukraine.

2. The paragraph two of Article 485 of the Customs code of Ukraine recognized as unconstitutional loses force in six months from the date of acceptance by the Constitutional Court of Ukraine of this decision.

3. To the Verkhovna Rada of Ukraine to give the normative regulation established by the paragraph the second Article 485 of the Customs code of Ukraine which is acknowledged unconstitutional, in compliance with the Constitution of Ukraine and this decision.

4. The solution of the Constitutional Court of Ukraine is obligatory, final and such which cannot be appealed.

The solution of the Constitutional Court of Ukraine is subject to publication in "the Messenger of the Constitutional Court of Ukraine".

 

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