Does customs have the right to request documents. Electronic media at customs: information screening

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The main obligation for a participant in foreign economic activity arises with the filing of a customs declaration (clause 1, article 131 of the Customs Code of the Russian Federation; hereinafter - TC).

However, you can get a delay in the submission of missing documents or Customs may request additional documents on their own.

Here is a visual diagram:

Grounds for the submission of documents and information after the filing of the CCD

1. There is no information required to fill out the customs declaration (incomplete declaration)
- A conditional release is carried out with a written obligation to provide the missing information (Article 135 of the Labor Code)

2. There are no necessary documents confirming the information stated in the customs declaration
- A conditional release is carried out with a written obligation of the declarant to submit the necessary documents (clause 5 of article 131, clause 1 of article 151 of the Labor Code)

3. Customs needs additional documents for customs control
- A written request is sent to the customs (Article 363, paragraph 3 of Article 367 of the Customs Code). Although such a request does not prevent the release of goods (clause 4 of article 367 of the Labor Code), the obligation to submit documents does not disappear

Attention! For failure to submit missing documents and information within the established period, liability is provided in the form of an administrative fine: on officials - in the amount of 2,000 to 5,000 rubles; for legal entities - from 50 thousand to 100 thousand rubles. (Clause 3, Article 16.12 of the Code of Administrative Offenses of the Russian Federation).

Request for documents before and after release of goods

Many believe that a request for documents from a foreign trade participant is possible only before the release of goods - during customs clearance.

However, the Federal Customs Service of Russia, in response to private inquiries, and judicial practice agree that verification of documents and information is a universal form of customs control, applied both before and after the release of goods.

The opinion is also erroneous that after the release of goods, verification of documents can be carried out only in the form of a customs audit. For example, the Federal Antimonopoly Service of the North-Western District, in its Decree of 05.10.2005 N A13-5803 / 2005-23, indicated that in accordance with paragraph 1 of Art. 358 of the Customs Code, when conducting customs control, the customs authorities proceed from the principle of selectivity and have the right to limit themselves only to those forms of customs control that they consider sufficient.

Consequently, after the release of goods, customs has the right to limit itself to checking documents and information without conducting an audit.

In addition, customs has the right to use the request for documents and information simply as a way to prepare for an audit (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated November 22, 2005 N F08-5487 / 2005-2171A) or during such an audit (Resolution of the Federal Antimonopoly Service of the North-Western District dated 13.10.2005 N A56-6347/2005).

Note. Customs has the right to request documents not only at the stage of customs clearance, but also after the release of goods outside the scope of the customs audit.

Deadlines for submission of documents

Specific and maximum possible deadlines for the submission of documents are indicated in the diagram.

Deadlines for submission of documents and information

1. In the absence of the necessary documents
- The term is indicated in the written obligation to submit the missing documents and can be maximum: 45 days from the date of acceptance of the declaration (clause 5 of article 131 of the Labor Code)

2. When submitting an incomplete declaration
- The term is specified in the written obligation of the FEA participant to submit the missing documents and can be maximum: When importing (for foreign goods) - 45 days from the date of acceptance of the declaration (clause 1, article 135 of the Labor Code); When exporting (for Russian goods) - 8 months from the date of acceptance of the declaration (clause 1 of article 135 of the Labor Code)

3. When customs requests additional documents
- The term is specified in the written request of the customs authority, the maximum period is not set. Only the requirement of sufficiency of the term is legislatively fixed (clause 2 of article 363, clause 3 of article 367 of the Labor Code)

And in what form does the customs set a specific time limit?

Setting a deadline by customs (permit form)

When submitting a customs declaration without the necessary documents, the customs authorities "authorize in writing" the submission of missing documents in accordance with paragraph 5 of Art. 131 TC terms.

Article 135 of the Customs Code does not at all contain any indication of the form for the customs to take a decision when submitting an incomplete customs declaration.

As for the request by customs for additional documents (including after the release of goods), such a request is made in writing. Other requirements for the form of the customs decision in paragraphs 3 and 4 of Art. 363 and paragraph 3 of Art. 367 TC no.

Thus, the only legal requirement for the decision of the customs on the establishment of deadlines for the submission of documents and information is the observance of the written form.

But reasonable questions arise. What is primary in determining specific terms - the declarant's appeal or the decision of the customs? Is a simple written form of the decision a separate document or is it enough to have a customs resolution on the declarant's application? How are these issues decided by the courts?

In the Decree of 08.02.2006 N A06-4417U / 3-18 / 05, the Federal Antimonopoly Service of the Volga District states that Art. 135 of the Labor Code does not provide for any mandatory form for the customs authority to decide on the deadline for submitting documents. The written obligation of the declarant must comply with the deadline set by the customs authority.

From the literal content of Art. 135 of the Labor Code, it follows that the declarant does not accept the obligation arbitrarily, but within the period established by the customs. That is, the determination of the term by customs is primary. The decision taken by the customs is drawn up arbitrarily.

Based on the meaning of the above FAS Resolution, registration is possible: by the resolution of the customs authority "Accepted for the purposes of customs control" on the letter of commitment of the declarant, as well as by indicating the period in column 44 of the customs declaration (for a similar decision, see the Resolution of the FAS of the Ural District dated 12.03.2008 N F09 -1305/08-C1).

The Federal Antimonopoly Service of the Volga-Vyatka District, in Resolution N A28-10498 / 2006-333 / 12 of 26.06.2007, on the contrary, argues that the deadline for submitting missing materials is not the deadline indicated by the declarant in column 44 of the incomplete customs declaration, but the deadline indicated in the written at the disposal of the customs authority (for a similar decision, see the Decree of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 14, 2008 N A29-6404 / 2007).

The court pointed out that a specific period may be set in the declarant's guarantee obligation, and the customs authority, by issuing an appropriate administrative document, approves the time limits, for violation of which administrative liability may arise. If there is no written order, but the goods are accepted for clearance, then, according to the court, even if there is a guarantee obligation of the declarant himself with a specific period, the deadline for submitting information should be considered the period specified in Art. 135 TK.

Similar conclusions are contained in the Decree of the Federal Antimonopoly Service of the North-Western District of August 20, 2007 N A56-46254 / 2006. But, besides this, the court considers that the customs decision should be issued in the form of a separate document. The resolution of the official of the customs authority "For work" on the letter of guarantee cannot be considered as confirming the acceptance by the customs of the deadline for submitting the missing documents proposed by the declarant (as well as a resolution of the form "For control, the deadline is 21.04.2007" - see the Resolutions of the FAS of the North Caucasus district dated January 29, 2008 N F08-8992 / 07-3374A, dated January 24, 2008 N F08-8987 / 2007-3367A).

If there is no separate administrative document of customs, the established Art. 135 TC deadline.

The period established by the customs must be communicated to the participant of foreign economic activity. Forms can be different: a mark on the letter of guarantee, presentation of another written document, sending a request, etc. If the deadline is not brought to the declarant, then the courts apply the deadlines established in Art. 135 of the Labor Code (see, for example, Decree of the Federal Antimonopoly Service of the Central District of September 1, 2005 N A68-AP-87 / 15-05).

Note. Neither the indication of the term in column 44 of the CCD, nor the resolutions of the customs "For work", "For control", etc. on the declarant's letter of guarantee can be considered as a decision on setting a deadline for the submission of documents by the customs - this is just a voluntary obligation of the declarant.

The only form of decision is the issuance by customs of a separate administrative document. In his absence, no matter what the terms are indicated in column 44 of the CCD and the declarant's letter of guarantee, the maximum terms established in paragraph 5 of Art. 131 and Art. 135 TK.

Sufficiency of the period set by customs

It must be remembered that when holding a foreign economic activity participant liable for failure to submit documents, the court in each specific case is obliged to investigate the issue of the sufficiency of the established period, taking into account all the actual circumstances, the nature of the requested documents, the number of holidays, the arguments of the foreign economic activity participant that it took time to receive such documents, as well as the timing and procedure for receiving a request by a foreign trade participant (for this requirement, see, for example, the Decree of the Federal Antimonopoly Service of the North Caucasus District dated October 30, 2006 N F08-5488 / 2006-2297A).

Sufficiency, as mentioned earlier, is the only requirement for the deadline for submitting documents at the request of customs.

But there is something else to consider here. For example, the Decree of the Federal Antimonopoly Service of the North-Western District of February 8, 2006 N A56-28833 / 2005 states that the customs request was received by the FEA participant on April 27, 2005, while the deadline specified in the request was April 29, 2005.

Thus, in the opinion of the court, the customs authority set a term for the foreign economic activity participant that was clearly insufficient for the submission of a large number of documents.

The court acknowledged that the participant in foreign economic activity was not guilty and made a reference to the fact that the participant in foreign economic activity applied to the customs with a reasoned request to extend the deadline for submitting the requested documents.

The latter circumstance is important, since the courts in most cases recognize the established period as sufficient if the participant in the foreign economic activity did not apply to the customs with an application for its extension or did not notify the impossibility of fulfilling the requirement (for example, Decree of the Federal Antimonopoly Service of the Moscow District dated 13.01.2006 N KA-A40 / 13277 -05; Volga District dated December 26, 2006 N A06-2667U / 3-14/06).

The same conclusion is made by the court in the event that an application for an extension of the deadline for submitting documents is nevertheless submitted to the customs authority, but after the expiration of the period established in the initial request (for example, Decree of the Federal Antimonopoly Service of the Moscow District dated October 24, 2005 N KA-A41 / 10306 -05).

Note. It is necessary to demand from the court an assessment of the sufficiency of the established deadline for the submission of documents. But at the same time, you need to remember: you should apply to customs for an extension of the period even in cases where the established period is obviously insufficient.

Requested Documents

Documents and information that a foreign trade participant is required to submit during customs clearance are listed in Art. Art. 63 and 131 of the Labor Code and specified in the List of documents and information required for customs clearance of goods in accordance with the selected customs regime, approved by Order of the Federal Customs Service of Russia dated April 25, 2007 N 536.

In paragraph 3 of Art. 367 of the Labor Code specifies that the customs authority has the right to request additional "documents and information solely for the purpose of verifying the information contained in the customs declaration and other customs documents."

After the release of goods, as indicated in paragraph 4 of Art. 363 of the Labor Code, customs has the right to request and receive "commercial documents, accounting and reporting documents and other information, including in the form of electronic documents, related to foreign economic transactions with these goods, and in relation to goods imported into the customs territory of the Russian Federation - also and to subsequent transactions with these goods, from the declarant or other person related to transactions with goods.

However, according to the wording of paragraph 3 of Art. 16.12 of the Code of Administrative Offenses of the Russian Federation, responsibility for it arises for failure to provide "documents requested by the customs authority during customs control in order to verify the accuracy of the information declared in the customs declaration and other customs documents."

How do the wordings of the Labor Code and the Code of Administrative Offenses of the Russian Federation compare? What documents does the customs have the right to request and for failure to submit which of them can a foreign trade participant be held liable?

Request for documents at the stage of customs clearance

Additional documents requested at the clearance stage should be necessary to make a decision on the release of goods. Such a conclusion is made, for example, by the Federal Antimonopoly Service of the West Siberian District in the Decree of September 12, 2006 N F04-5940 / 2006 (26311-A46-23).

Many people believe that liability at the stage of registration comes only in case of failure to submit documents related to the determination and declaration of customs value.

However, it is not. Documents may relate to any issues resolved during the release of goods (see, for example, the Decree of the Federal Antimonopoly Service of the Urals District of October 6, 2005 N F09-4402 / 05-C1).

The courts almost unanimously recognize that, even if the declarant voluntarily assumed the obligation to submit any documents, liability for their failure to submit them can only arise if the obligation to submit them is established by regulatory legal acts or a written request of the customs authority, and this is expressly provided for by regulations.

Thus, the Federal Antimonopoly Service of the East Siberian District in its Decree of November 17, 2006 N A19-14145 / 06-35-F02-6076 / 06-C1 states that in the customs decree on holding a foreign trade participant liable for failure to submit a sanitary and epidemiological conclusion on imported goods legal substantiation of the obligation of the declarant to submit such an opinion is not given. Customs did not take into account that failure to fulfill an obligation voluntarily assumed by a person cannot be a legal basis for bringing to administrative responsibility without prior establishment of a legal obligation by the current legislation. The Decree of the Federal Antimonopoly Service states that the customs is obliged to present in court a legal justification for the declarant's obligation to submit documents, to indicate what regulatory legal acts provide for the submission of this document for the disputed goods (see similar conclusions in the Decree of the FAS of the East Siberian District dated June 27, 2006 N A33-1488 / 06-F02-3092 / 06-C1; Far Eastern District dated July 12, 2006 N F03-A73 / 06-2 / 1842).

Note. If a participant in foreign economic activity has voluntarily assumed the obligation to submit any documents, then responsibility for their failure to submit cannot arise.

At the stage of customs clearance, liability may arise for failure to submit only those documents, the obligation to submit which is fixed by a regulatory act or a decision of the customs office (if such a right is provided for by a regulatory act). Such a duty must be proven by customs in court.

Request for documents after the release of goods

Based on the provisions of paragraph 4 of Art. 363 of the Labor Code (that after the release of goods, the customs authorities have the right to request documents and information related to foreign economic transactions with goods, and in relation to goods imported into the customs territory of the Russian Federation, also to subsequent operations with these goods) and clause 3 Art. 367 of the Labor Code (that the customs authority has the right to request additional documents and information solely for the purpose of verifying the information contained in the customs declaration and other customs documents), the courts conclude that an integral element of the offense of failure to submit documents requested by customs after the release of goods is goods declaration.

Thus, the Federal Antimonopoly Service of the Central District in its Decree N A36-1129/2005 dated 05.12.2005 concludes that the obligatory condition for bringing to responsibility is the submission of a declaration by the declarant to the customs authority, which contains information subject to verification by the customs authority. It is to verify the specified information that documents are requested, the failure to submit which entails administrative responsibility. Therefore, the court believes, the customs authority is obliged to provide evidence of the declaration by the participant of foreign economic activity of the goods in respect of which the documents are requested. Consequently, the participant in foreign economic activity must also have documents confirming the accuracy of the information declared in the customs declaration and other customs documents.

Note. Customs has the right to request documents only in respect of goods that were moved across the customs border and were processed in accordance with the law.

If there are suspicions that a certain product was imported illegally, then verification of such facts cannot be carried out by customs in the form of a request for documents.

In response to private inquiries, the customs authorities partly support this point of view. Thus, it is considered unlawful to request the submission of documents and information to organizations selling foreign-made goods on the domestic market in order to compare them (for example, in terms of the range and cost of goods) with the information declared during customs clearance by importers of similar goods for other foreign economic transactions.

That is, documents and information may be requested that are not related to any foreign economic operation, but to one that is directly related to a previously released product. In this case, the purpose of the request is to verify the accuracy of the information declared during the customs clearance of these goods.

When determining the sufficiency of the submitted documents in court decisions, one can distinguish substantive and formal approaches.

This approach is used, for example, in the Decree of the Federal Antimonopoly Service of the West Siberian District dated July 20, 2006 N F04-4367 / 2006 (24512-A27-19). The customs requested information from the FEA participant confirming the gratuitous nature of the delivery (acts of commissioning and failure of this equipment or other documents confirming the receipt of goods under the terms of the warranty obligation). The requested documents, with the exception of the act of putting the equipment into operation, are submitted by the declarant to the customs authority in a timely manner.

The court came to the conclusion that the presented act on the failure of the equipment within the warranty period contains all the necessary information confirming the information stated in the customs declaration, and stated that there were no signs of an offense under paragraph 3 of Art . 16.12 Administrative Code of the Russian Federation.

The formal approach is the exact opposite: if at least one of the documents requested by customs was not submitted, the trader is held liable.

For example, in the Decree of the Federal Antimonopoly Service of the Far Eastern District dated November 8, 2006 N F03-A24 / 06-2 / 3951, to confirm the information and authority of the person who submitted the CCD on behalf of a legal entity , the request for the following documents is recognized as reasonable:

Staffing for the period 2004 - 2005;

Employee's personal card;

Time sheet;

Employee payroll sheet;

Attachment to the employment contract , concluded by the company with the employee, for the payment of remuneration for declaring goods according to cargo customs declarations;

Account card 70 for December 2004 - October 2005 with information on the calculation of wages (remuneration) to the employee.

Although it is obvious that from a substantive point of view, the fact of the state in the state of a legal entity can be confirmed by any of the requested documents.

Another example of a formal approach is the Decree of the Federal Antimonopoly Service of the Moscow District dated October 24, 2005 N KA-A41 / 10306-05. In it, a foreign trade participant was found guilty on the grounds that the document submitted by him (a report on goods placed under the duty-free regime and sold for a certain period) did not meet the requirements established by the regulatory act in form and content. At the same time, the court did not evaluate the content of the submitted document.

However, despite different approaches, customs has the right to request only those documents that the declarant has available, and not to require additional analytical or statistical processing of information from him.

For example, on this basis, in the Decree of the Federal Antimonopoly Service of the North-Western District dated 05.10.2005 N A13-5803 / 2005-23, the request from a foreign economic activity participant to "break down" the volumes of timber accepted by the buyer according to the measurement certificates, and the volumes paid according to the measurement certificates for on the basis of invoices issued, for each declaration and separately for each commodity item.

Absence of guilt

According to paragraph 2 of Art. 2.1 of the Code of Administrative Offenses of the Russian Federation, a legal entity is found guilty of an administrative offense if it is established that it has:

There was an opportunity to comply with rules and regulations;

This person did not take all measures depending on him to comply with them.

Therefore, absolutely all circumstances (for example, the applicant’s stay in hospital) that prevented the person from fulfilling his obligations must be investigated (for this requirement, see, for example, the Decree of the Federal Antimonopoly Service of the East Siberian District of February 7, 2007 N A19-22457 / 05-36 -27-Ф02-126/07).

How do the courts evaluate these conditions in relation to paragraph 3 of Art. 16.12 Administrative Code of the Russian Federation?

When there is no real opportunity

The lack of a real opportunity to submit documents within the allotted time can be caused by a variety of reasons, for example, the fact that a participant in foreign economic activity is in hospital.

However, the main reason is violations by the authorized body issuing documents.

Thus, the Federal Antimonopoly Service of the East Siberian District, in Decree N A33-4045 / 06-F02-271 / 07-C1 of February 12, 2007, established that the participant in foreign economic activity was not guilty, since Rospotrebnadzor issued the certificate of state registration necessary for the participant in foreign economic activity in violation of the established in Art. 131 of the Labor Code of the maximum delay in the submission of additional documents (45 days).

According to the court, the FEA participant took all the necessary measures to timely obtain a certificate of state registration and a sanitary and epidemiological conclusion. As necessary and sufficient measures, the court indicated telephone conversations, sending letters, using courier communications, explanatory letters to the customs authority.

For similar conclusions, see the Decrees of the FAS of the East Siberian District of June 28, 2006 N A33-4045 / 06-Ф02-3068 / 06-С1; Far Eastern District dated September 27, 2006 N F03-A73 / 06-2 / 2979; West Siberian District dated March 16, 2006 N F04-1115 / 2006 (20548-A27-23); Ural District dated 06/01/2006 N F09-4614 / 06-C1; North-Western District dated May 18, 2006 N A42-11958 / 2005.

Opposite solutions are rare. Thus, the Federal Antimonopoly Service of the West Siberian District, in its Decree of February 7, 2006 N F04-127 / 2006 (19397-A27-27), found the participant in foreign economic activity guilty, since he did not take steps to obtain the necessary permission from the authorized body before importing the goods.

It seems that such decisions do not comply with the letter of the law, since there is not a single norm obliging a participant in foreign economic activity to obtain any documents before importing goods into the territory of the Russian Federation.

Note. Judicial practice clearly states: if the document was not submitted on time because the relevant competent authority delayed its issuance, then there is no fault of the foreign trade participant.

When all measures are taken

Often in such situations, the customs authorities refer to the fact that the trader is obliged to foresee the possible long time for obtaining the necessary documents from the relevant state bodies, and also to the fact that the trader had enough time to receive such documents during the period the goods were in the temporary warehouse. storage.

However, the courts most often recognize such justification as untenable.

For example, the Federal Antimonopoly Service of the Volga District in Decree N A12-9486 / 06-s45 dated 03.11.2006 (the declarant was obliged to submit to the customs a sanitary and epidemiological conclusion on the imported goods) gives the following argumentation. The FEA participant submitted an application for an examination and issuance of an expert opinion simultaneously with the submission of a cargo customs declaration, i.e. in a timely manner. The conclusion was submitted to the customs authority immediately after its preparation. By any legal means of influencing the expert institution in order to produce an examination within the time limits provided for in Art. 135 of the Labor Code, a foreign trade participant does not possess. When the goods were in the temporary storage warehouse, the declarant did not have an obligation to obtain an opinion and the customs authority did not declare such a requirement.

Another issue is related to the temporary storage warehouse. The customs states that if a government agency delays issuing any document, the trader is obliged to place the goods in a temporary storage warehouse for this period, and if this is not done, the trader is guilty. ( We are talking about the submission of additional documents at the stage of registration of goods.)

If you come across such justification, feel free to challenge it - arbitration practice on this issue is unequivocal. The courts come to the conclusion that the use of the temporary storage procedure for the period of receipt of the missing documents is the right, and not the obligation of the declarant, therefore, the failure to use such a procedure cannot indicate the presence of guilt.

With alternative options for lawful behavior, a participant in foreign economic activity has the right to choose one of them: obtaining a delay in submitting documents to customs or timely actions to receive such documents (see, for example, Resolutions of the Federal Antimonopoly Service of the East Siberian District dated February 12, 2007 N A33-4045 / 06-Ф02 -271 / 07-C1, dated 06.28.2006 N A33-4045 / 06-F02-3068 / 06-C1; North-Western District dated 05.18.2006 N A42-11958 / 2005).

But a mandatory condition in all cases for the court to recognize as sufficient the actions taken by the participant in foreign economic activity to obtain the necessary documents is the application of the participant in foreign economic activity to the customs with a request to extend the deadline for submitting such documents.

If the FEA participant has not exhausted its maximum limit (45 days) and has not applied for an extension of the period established by the customs, the courts conclude that there is an offense (see, for example, Decree of the Federal Antimonopoly Service of the Volga District dated December 26, 2006 N A06-2667U / 3-14/06).

Note. If the declarant is faced with circumstances that impede compliance with the deadline, then, having taken all the measures that depend on him (mandatory appeal to the customs office with a request to extend the deadline for submitting documents, timely appeal to the authorized body, correspondence with him), resort to an additional measure - placing the goods under the temporary storage procedure - the declarant is not obliged.

Persons held liable

Who is responsible for submitting documents to customs?

At the stage of customs clearance, everything seems to be clear. Based on the content of paragraph 3 of Art. 16.12 of the Code of Administrative Offenses of the Russian Federation, the courts come to the conclusion that the subject of this offense is the person who is responsible for performing the operations necessary for the release of goods. By virtue of paragraph 1 of Art. 16 of the Labor Code, the obligation to perform customs operations for the release of goods is borne by the Russian person who has concluded such a foreign economic transaction or on whose behalf or on whose behalf this transaction has been concluded.

So, on the basis indicated, he was released from liability under paragraph 3 of Art. 16.12 of the Code of Administrative Offenses of the Russian Federation customs broker (see Decree of the FAS of the Far Eastern District of November 29, 2006 N F03-A73 / 06-2 / 4294).

Of course, such a court decision somewhat contradicts paragraph 1 of Art. 363 TK. This paragraph lists the categories of persons who are obliged to submit documents and information: persons moving goods, customs brokers (representatives), owners of temporary storage warehouses, owners of customs warehouses and customs carriers. However, the logic of protection is based on the analysis of other norms, therefore, it can be adopted by participants in foreign economic activity.

With the request for documents after the release of goods, the situation is different. In paragraph 4 of Art. 363 of the Labor Code defines not only the category of documents that can be requested by customs after the release of goods, but also the category of persons from whom the customs authorities have the right to request them. As such persons, in addition to the declarants, "other persons related to operations with these goods" are indicated.

However, the content of this category of persons is nowhere disclosed in the customs legislation. Can they be equated with interested parties, the definition of which is given in Art. 11 of the Labor Code (interested persons - persons whose interests are affected by decisions, actions (inaction) of the customs authorities in relation to goods and (or) vehicles directly and individually, unless otherwise follows from the Customs Code), is a moot point.

Note. The circle of persons from whom documents and information may be requested after the release of goods is not regulated by law.

In fact, they can be recognized as any persons at whose disposal (including during the subsequent sale of goods on the territory of the Russian Federation after importation) such goods turned out to be.

For example, in response to private requests, customs authorities recognize commission agents and senders of exported goods as other persons.

As you can see, judicial practice provides ample opportunities to protect participants in foreign economic activity from the arbitrariness of customs when requesting documents. And if the customs does not agree with your arguments, feel free to go to court, armed with the recommendations listed in the article.

Almost every tourist or businessman traveling abroad carries a laptop, tablet computer, or at least a smartphone. These are personal belongings and their owner has the right to safely walk along the "green" corridor. But the law allows customs officers not only to confiscate any electronic media, but also to view the information recorded on them - in search of both counterfeit films and dubious publications from various points of view.

Already when she was in the departure hall of the Pulkovo airport, she was required to go to a separate room, where the Pulkovo customs officers carried out an inspection of hand luggage. The laptop, iPad and flash cards found in the bag were confiscated, and the passenger herself received an act of “sampling and sampling”. Moreover, during the several hours that the woman flying to Helsinki spent in the customs office, a lawyer was not allowed to see her.

The lady checked in the luggage

Obviously, the customs officers were not looking for hidden drugs in the "flash drives" and hardly expected to find "diamonds of the proletariat" in flat computers - the guards of economic borders were interested in information. Therefore, the incident with Sharogradskaya raised several questions at once:

Do travelers still have to declare laptops, tablets, smartphones, cards, and so on?
- Can customs officers examine the information recorded in the memory of devices and media?
- Is a citizen or citizen who is in the customs zone entitled to demand a lawyer?

The “smuggler” herself and her lawyer, the head of the Freedom of Information Foundation Ivan Pavlov, have answers to these questions. After all, all seized is personal property, and computers and flash drives contained personal correspondence and other information about private life. The confidentiality of such information is guaranteed by the Russian Constitution, and interference is allowed only on the basis of a court decision. “The inspector did not provide documentary grounds for the seizure of the property of Sharogradskaya A.A. and her personal correspondence,” Pavlov said.

In addition, the customs legislation allows sampling and samples of goods exclusively for customs examination, but the “suspect” herself has not yet been notified of its conduct.

Shame on the state

RAPSI decided to find out from the customs officers themselves whether respectable Russians are obliged to declare the exported personal laptop, iPad and three “flash drives”, and also whether the guards of economic borders can check the contents of electronic media. To do this, a group of individuals sent requests to several regional customs offices asking for clarification of the ambiguous provisions of the law.

The experiment showed that the officials of the Federal Customs Service do not have a unified position. Nor do they seek to explain to citizens their rights: most of the answers included only "copy-paste" of the provisions of regulations (including agreements of the Customs Union).

For example, Irina Shagidevich, senior state customs inspector of the legal department of the St. Petersburg Customs, simply listed all cases of mandatory declaration of goods, including even cultural values and cash in this list . Anastasia Khabubi, her colleague from the legal service of the North-Western Customs Administration, also explained that the devices specified in the request are subject to customs declaration if they belong to the listed list of goods.

But the senior state customs inspector of the legal department of the Sheremetyevo customs, Irina Yem, is convinced that a laptop, a tablet computer and three flash drives are not subject to mandatory customs declaration. Sheremetyevo Customs was also the only one of those surveyed that clarified the issue of inspectors' access to information constituting the secret of private life and correspondence. “Access to personal information is possible only on the basis of a court decision or a decision of an authorized body,” the inspector stated.

A different point of view is held in the Pulkovo customs, around whose actions a scandal erupted. Deputy Head of the Legal Department Natalia Suchkova refers to the legal acts of the Customs Union and the EurAsEC, which prohibit the import, export and even transit of printed, audiovisual and other media with pornographic materials containing a call for extremist and terrorist activities or public justification of terrorism, with Nazi paraphernalia or symbols, illegally produced campaigning, as well as any other information "which may harm the political or economic interests of the member states of the Customs Union, their national security, health and morality of citizens."

Check - everyone check

True, the documents indicated by Suchkova restrict the movement not of the information itself, but of the specific objects (goods) on which it is recorded. These, according to the listed codes of the Commodity Nomenclature for Foreign Economic Activity (TN VED), include printed materials, films, calendars, decals, as well as various electronic media (discs, cards, and so on). That is, “flash drives” are a controlled object, but computers, smartphones and other devices are classified according to completely different codes.

Lawyers interviewed by RAPSI generally consider it acceptable for customs officers to conduct “information control”. After all, they, in particular, are entrusted with the function of protecting intellectual property rights.

“If the customs authorities have reasonable grounds to believe that a computer or tablet contains information prohibited for export, or results of intellectual activity illegally used for commercial purposes, then they have the right to check these media. To establish the actual content of the information, an expert examination may be ordered, and the carriers may be confiscated,” said Natalia Kolerova, a lawyer at S&K Vertical.

, head of the Pen&Paper criminal law practice, shares a similar opinion : “Customs officials have the right to seize information media and, if necessary, examine their contents. But only if a citizen who crosses the border and is in the customs control zone or the transit zone of an international airport hides and does not voluntarily give out goods transported in violation of the law.

At the same time, experts are convinced of the absurdity of the actions of customs officers to search "flash drives" or transported computers for prohibited information. After all, today it is easier and safer to send it over the Internet, including (if necessary), using encryption tools or a VPN channel (an “encrypted tunnel”) that is inaccessible to control even by special services.

Right to a lawyer

Returning to the story of the detention of Sharogradskaya, her lawyer Pavlov also considers the actions of the Pulkovo customs officers, who did not allow her lawyer to visit the de facto detainee, illegal. Allegedly, this was impossible, since one can get into the customs zone of the airport only with a foreign passport and an air ticket.

Whereas the Constitution of Russia, again, guarantees every citizen the right to qualified legal assistance , and from the moment of restriction of his rights. And Sharogradskaya was de facto detained - she was not allowed on the flight, her personal belongings were confiscated, and she was not allowed out of the customs control zone for several hours.

The opinions of customs officers on this issue again differ. Anastasia Khabubi (NWTU) believes that a lawyer “is not prohibited from being present at a personal search of a person,” however, a lawyer can be in the customs control zone only with the permission of the customs authorities and under their supervision. According to Irina Shagidevich, "the question of the participation of a lawyer during a personal customs inspection is not regulated by the customs legislation of the Customs Union and the legislation of the Russian Federation on customs affairs." And Natalia Suchkova from the Pulkovo customs states that the law does not provide for specific access of a lawyer to the customs territory.

Anna Sharogradskaya, in turn, has already filed a lawsuit against customs to recognize the seizure of her property as illegal. At the same time, the first court session will take place only at the end of October.

Pavel Netupsky, St. Petersburg (specially for RAPSI)

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20.10.16 62 187 0

To calmly cross the border and bring home cheese with jamon

Stepan often flies abroad.

Returning from Italy, he filled his suitcase with fragrant Parmesan, bought by weight from a farmer. But customs confiscated all the cheese, and even soldered a fine. We will figure out together with Stepan whether the actions of the customs officers are legal and what he should do next time.

Katerina Kachalina

journalist

Customs is a government agency that monitors what items and substances are transported across the border. Its main tasks are to prevent the import and export of anything prohibited and to control the payment of duties when required by law. Customs protects cultural property, discourages drug trafficking and restricts the black market. In Russia, this is done by the FCS - the Federal Customs Service.

How customs works

At the border, arrivals in the country go through customs control. All suitcases and bags are x-rayed. Trained dogs, along with cynologists, sniff out suspicious substances. Customs officers carefully study the faces and behavior of travelers.

Some things can be imported into Russia and exported from it without problems. Others need to be declared, that is, the state should be informed about them.

If you are carrying cultural property, a large amount of money, very expensive purchases or goods for sale, you will have to go through the red corridor. Otherwise, your path is green. It's not worth cheating. Customs officers monitor those passing through both corridors. Going green means making a verbal statement: you don't have things to declare. If you are suspected of something and decide to inspect, you will have to answer for deception.

But it is better not to ask on the spot, but to find out in advance.

What you need to declare when importing into the Russian Federation

All rates are per passenger. If you are flying or traveling together, multiply by three. Be careful: you can write down extra pounds of jamon for a baby, but alcohol and cigarettes - only for passengers over 18 years old.

Alcohol

Up to 3 liters - we do not declare. 4-5 liters - we declare, we pay 10 euros per liter. More than 5 liters - possible confiscation.

4 bottles of cognac, 0.75 l each

4 bottles of cognac 1 liter

Tobacco products

Up to 200 cigarettes, 50 cigars, 250 g of tobacco - we do not declare. Anything above is subject to confiscation.

50 Havana cigars

2 packs of camel cigarettes

250 g of nasvay (carefully: they can be sent for examination)

400 g nasvay

250 g of tobacco for hookah (careful: they can be sent for examination)

1 kg hookah tobacco

Personal goods - appliances, clothing, jewelry, etc.

If the total weight of the goods is not more than 50 kg, the total value is not higher than 1,500 euros (if you arrived by land) or 10,000 euros (if you arrived by air) - we do not declare. If the weight is greater or the value is higher, we declare and pay 30% of the customs value of the goods, but not less than 4 euros per 1 kg.

If you're transporting a lot of the same items - especially gadgets - you could be held back, fined, and even sued if customs decides you're transporting these items for sale.

If you owned expensive goods before the trip and just took them with you, be prepared to prove it. It is best to declare the valuables at the time of export.

Passing off goods for sale as goods for personal use is a risky undertaking. The days of shuttles are over. Seeing 10 iPhones in unopened boxes on an x-ray, the customs officer will ask you to open the bag and, most likely, will confiscate them all. It will be necessary to prove that they were only bringing gifts to friends in court.

Certain goods are not considered personal goods under any circumstances. Natural diamonds, central heating boilers, slot machines, equipment for photo labs and a solarium will not be able to be transported.

Bike

50 pairs of matching socks

Blue emerald ring

10 iPhones in unopened boxes

Scrap of ferrous and non-ferrous metals

Knife (subject to weapons certificate or permit)

Gun

Pepper spray (luggage only)

Nerve gas canister

Medications

You are carrying for yourself or loved ones, you are not going to sell, there are no narcotic and psychotropic substances in the composition - we do not declare. If the medicines contain narcotic and psychotropic substances, we declare them. You will need an extract from the medical history and a prescription. Bring no more medicines than the prescription says.

Desomorphine

Vitamin C

psilocybin mushrooms

Tramadol (possible with a prescription)

Corvalol (better to declare)

Codeine (available with a prescription)

Products

Up to 5 kg of products of plant or animal origin in a package - we do not declare. Seeds, potatoes (any), products of animal origin without original packaging or in opened packaging, some products from countries where there was an outbreak of diseases (for example, swine flu) - confiscation is possible.

You can find out about temporary food restrictions on the Rosselkhoznadzor website. Select the country you are interested in from the list. If there are time limits, you will see the corresponding tab.

Cheese from the store in sealed factory packaging

Farm cheese wrapped in paper

Fig jam in a sealed original packaging

chia seeds

3 kg mango (in luggage)

young french fries

Ashes and bodies

Cultural values

Cultural property includes paintings, icons, antique books and weapons, coins, etc. If their value does not exceed 1,500 euros and their weight is 50 kg, carry them as ordinary personal goods. If it exceeds, it makes sense to declare and register them as cultural property - you will be exempt from tax. Also, the tax is canceled if you are taking the paintings not for personal use, but, for example, to an exhibition. Be prepared to back it up with documents.

If in doubt if your grandmother's watercolor falls into this category, check the list of cultural property.

Vasnetsov's painting "Alyonushka" (it is possible to temporarily attend the exhibition with documents)

Vehicles

If you plan to buy a car or motorcycle abroad, notify customs in advance about the point of entry, provide documents and pay a deposit on the customs deposit. The deposit must not be less than the total amount of fees and charges, which is calculated based on the age and engine size of the vehicle. Upon arrival, we fill out a declaration and wait from 1 to 3 days.

What you need to declare when exporting from the Russian Federation

Money

We do not declare up to 10,000 US dollars in any equivalent in the form of cash or traveler's checks. More than $10,000 in cash or travelers checks equivalent; any "monetary instruments" (bills, bank checks, securities) - we declare.

Products and goods for personal use

We carry safely in any quantities. Exceptions:

Sturgeon caviar - no more than 250 g.
Fish and seafood - no more than 5 kg.
Fuel in a separate canister - no more than 10 liters.
Precious metals and stones - worth no more than $ 25,000 in equivalent.

The declaration can be completed by hand or on a computer. If one form is not enough, use additional sheets. Sign each of the sheets and put the date.

Write down the names of all goods, their quantity, weight and cost, as well as the details of the documents required for transportation.

See the FCS website for detailed rules for filling out the declaration.

How to pass customs control

Let's say you bought some parmesan and you're flying home. The cheese is packaged and complies with international standards. You keep calm and behave intelligently. And yet they stop you at the border.

This may be a routine check, or you seemed to the customs officer like a dangerous criminal from the Interpol base. It’s not worth getting mad and finding out the reason for the detention. In order not to aggravate the situation, remember the main rules for communicating with customs officers:

Politely but persistently demand the head of the customs service or his written instruction to conduct an inspection. Only he or his deputy has the right to make such a decision.
If you are carrying something prohibited or undeclared, it is better to admit it right away. Then extra cigarettes or money will be allowed to be given to the mourners, and you can avoid a fine.
It is not necessary to go into a deaf refusal: for disobedience, the customs officer has the right to detain you for up to 3 hours, and sometimes even days. The plane will fly away during this time, and no one will compensate for the ticket.
If there are 15 minutes left before the end of boarding, and the customs decided to inspect you, do not panic. In such cases, both parties are interested in everything being resolved peacefully and quickly. Airport staff will meet you halfway and let you on board even late.
If customs has mistakenly seized green tea brought from China, do not rush to say goodbye to it forever. An examination will reveal that it is not marijuana, and you can return it. In the case of cheese in its original packaging or illegally confiscated used fifth iPhone, the only option is to write a statement to the prosecutor's office.

Remember

If you are carrying something that needs to be declared, go along the red customs corridor. If you are not lucky - go on the green.
There is no need to deceive customs officers: they will enlighten, find and punish.
When entering the Russian Federation, declare excess alcohol, bulky or expensive goods for personal use, certain medicines, cultural property and vehicles.
When leaving the Russian Federation, declare cultural property and money in excess of $10,000 in cash.
Download and fill out the customs declaration in advance.
During the inspection, behave confidently and calmly. If you are not guilty of anything, everything will be fine.

Question: Do customs authorities have the right to confiscate goods and vehicles, as well as documents and other items?
What is the procedure for such actions? Answer: The seizure of goods, vehicles, documents and other items is regulated by Article 337 of the Labor Code of Russia.
In accordance with article 337 of the Labor Code of Russia, the following are subject to seizure:
- goods and vehicles that are direct objects of violation of customs rules;
- goods and vehicles with specially made caches used to move across the customs border of the Russian Federation with the concealment of items that are direct objects of violation of customs rules;
- vehicles on which goods were transported, which are direct objects of violation of customs rules;
- documents, means of identification and other items that have the signs of physical evidence specified in Article 327 of the Labor Code of Russia.
In addition, it is allowed to seize goods (including the currency of the Russian Federation, securities in the currency of the Russian Federation and currency values) and vehicles when held liable for violation of customs rules: - an individual or an official who does not have a permanent residence in the Russian Federation
,
- a legal entity that does not have a branch, representative office, branch on the territory of the Russian Federation,
- Russian or foreign enterprises, institutions, organizations, as well as persons engaged in entrepreneurial activities without forming a legal entity, the paid authorized capital of which and (or) the value of another territory of the Russian Federation property, with the exception of goods and vehicles under customs control, do not cover the amount of possible fines.
To ensure the recovery of the specified fines or costs, a withdrawal is made. With the consent of the customs authority of the Russian Federation, the seizure of goods and vehicles specified in the second part of Article 337 of the Labor Code of Russia may be replaced by their pledge, or the provision of a guarantee, or the deposit of the amounts due in the manner prescribed by Article 122 of the Labor Code of Russia.
15.04.96 Head of department

UBTP State Customs Committee of Russia
A.E. Akimov

A trip abroad has ceased to be exotic. Communication with customs officers when crossing the border is usually not burdensome: a quick glance at your suitcases - and a stamp in the declaration. But everyone knows that all kinds of violators are regularly found among travelers. And no completely respectable tourist is immune from the fact that the customs officer will stop him

Enter your money, otherwise be in trouble

No one is safe from scrip and from ... personal search

©A group of tourists missed their plane to Amsterdam. There were only a few minutes left before departure. Part safely passed the cordon, and two girls were stopped. The customs officer suggested that they were taking out dollars that were not included in the declaration. She searched them both, feeling them from head to toe, examining the contents of their bags. One did not find anything suspicious and released. And the second really turned out to be an unaccounted currency. And she was seized without drawing up a protocol. Otherwise, do not fly, said the customs officer.

That happens. But does anyone know that this should not be? Yes, when a customs officer suspects that one of the passengers is breaking the law, he can detain this person. But he has no right to search him without witnesses and the order of the chief or to seize things without drawing up a protocol. Personal search must be carried out strictly in accordance with the procedure defined by the Customs Code of the Russian Federation. ©

According to the law, the decision to conduct a personal search is made and announced by the head of the customs body of the Russian Federation or an official replacing him, who has an extract from the order on his official appointment to replace his boss. The personal presence of the chief may replace his written instructions.

Before the search, you should be explained your rights and obligations and offered to voluntarily hand over hidden items. If the customs officer was not mistaken and you are really carrying undeclared dollars or an extra block of cigarettes, it is better to confess at this stage - they will find it anyway. And so you will have the opportunity, referring to forgetfulness, to transfer the discovered objects to the persons accompanying you. If there are no mourners, you will have to agree to the arrest of illegally transported items with the preparation of an appropriate protocol of voluntary extradition.

Inspection©

If you are not carrying anything like that and you have nothing to voluntarily give out, the customs officers have the right not to believe you and bring the personal search procedure to the end. Of course, you can refuse, but it's pointless: refusal of a personal search, disobedience to a customs officer gives him the right to detain you administratively for up to three hours. And if he has serious grounds to suspect you of more serious sins, then this period can be extended to three days (with a report to the prosecutor about it), or even up to ten (with the prosecutor's sanction). So if you do not want to miss the plane, it is better not to conflict and agree to a personal search.

It must be carried out in an isolated room. They are examined in the presence of attesting witnesses (necessarily disinterested persons). All participants must be of the same gender. And no surveillance - neither through the peephole, nor in the video camera. If at the same time you are reminded of the video footage of the inspection of drug couriers being shown on television, then please note that this is operational footage and there must be a court decision or a prosecutor's sanction for it. And in any case, filming cannot be conducted at the time of the inspection of citizens, if they are in underwear or without it. According to the instructions of the State Customs Committee "On the personal search of individuals ...", approved by the order of the chairman of the State Customs Committee dated February 2, 1998, only a customs officer or customs officer can be present. True, this provision contradicts the Customs Code, according to which witnesses are present during the entire inspection.

If the detainee is suspected of hiding something inside his body, he is examined by a medical officer (without gender restriction).

If a person who does not speak Russian is being examined, then an interpreter may be present during the procedure, if a minor or incapacitated - parents or guardians. ©

The harsh word "protocol"

If, as a result of a personal search, it is discovered that you are carrying undeclared items, a protocol is drawn up on their arrest.

This paper must be signed by all those present during the inspection - the official of the customs authority who conducted the personal search, the person being searched, witnesses. If a doctor and other experts were involved, they should also leave their autographs and comments. By signing the protocol, you have the right to add your comments to it, for example, declare a violation of your rights or disagree with its content.

If, while you were being searched, your ship sailed away, the plane flew away, the train left, and nothing prohibited was found, then customs will have to compensate for all losses. So it is in the interests of both sides to resolve everything peacefully and quickly. ©

Conflict©

If you have resisted customs officers and you are about to be detained, be aware that only the head of the customs authority or his deputy can make a decision on administrative detention. A record of this must be drawn up. The period of detention is calculated from the moment of delivery to the customs office, and for drunks - from the time of their sobering up.

The fight for your rights in this case is a long and very troublesome business. 24 hours are given for the progress of a complaint about administrative detention to a higher customs authority, court or prosecutor, or to three addresses at the same time. Three days from the date of receipt of the complaint are allotted for consideration.

What can serve as a basis for canceling the decision to detain? For example, its acceptance by an unauthorized person, lack of sufficient grounds. In this case, the detainee is released.

From the very beginning, you can ask for a lawyer. But he will appear within 24 hours from the moment of administrative detention, and not necessarily the one you are waiting for: if your defense lawyer is not in place, then customs officers can also invite a lawyer from the nearest consultation. Before the arrival of a lawyer, it is better not to give any evidence or written explanations, especially since, according to Article 51 of the Constitution of the Russian Federation, no one is obliged to testify against himself or close relatives. The time of communication with the defender is not limited.

And the last. Regardless of whether the inspection procedure is carried out according to the rules or the customs officers have resorted to the "express option", make sure that you have two witnesses. Their testimony can help you, if necessary, substantiate a complaint to a higher authority or come in handy in court. ©

The Constitutional Court confirmed the illegality of the seizure of personal property of citizens without a trial as an administrative punishment. The customs officer can seize your property, and the decision to seize it must be made by the court. This does not apply to illicit items - drugs, weapons, etc.