In detail...

IN THE NAME OF THE PRIDNESTROVSKAIA MOLDAVSKAIA RESPUBLIKA

R E S O L U T I O N

on the case about the verification of constitutionality of Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika regarding imposing by the customs organs of the sanctions as forfeiture stipulated by Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika on the complaint of the citizen Karaman Vasiliy Petrovich

March 14th, 2006 the city of Tiraspol

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comprising: the presiding Chairman of the Constitutional Court Grigoriev V.A., Judges Garaga V.I., Kabaloev O.K., Karamanutsa V.I., Lyakhova M.I., Malskaya L.G.,

in the presence of the representative of the petitioner Shcherbatyi V.S., the plenipotentiary of Supreme Council of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika Head of Department of legal support of bills of the Staff of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika Melnik .B., the representative of the Supreme Council of the Pridnestrovskaia Moldavskaia Respublika in the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika - Deputy Chairman of the Committee of Supreme Council of the Pridnestrovskaia Moldavskaia Respublika on legislation, rights and freedoms of the citizen Rybyak L.M.,

being guided by Article 87 (item 3) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika, Article 9 (item c) Part One), Article 27 (item c) Part One), Articles 102, 103 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika " About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika ",

considered in the open session the question about the verification of constitutionality of Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika regarding imposing by the customs organs of the sanctions as forfeiture stipulated by Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika with changes and additions made by laws of the Pridnestrovskaia Moldavskaia Respublika from November 6th, 2001 61--III, from July 10th, 2002 152--III, from February 11th, 2003 237--III, from July 15th, 2003 309--III, from December 9th, 2003 372--III, from January 12th, 2004 387--III, from November 5th, 2004 490--III, from March 1st, 2005 542--III, from June 17th, 2005 578--III.

The ground for consideration of the case has become the complaint of the citizen Karaman V.P. on the infringement of his constitutional right to property as a result of application of the specified norms. The ground for consideration of the case has become the uncertainty in the question on conformity of the disputted norms to the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

After hearing the report of the Judge-Speaker Kabaloev O.K., the explanations of the representatives of the parts, after the examination of all the documents and other materials submitted, the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:

1. The citizen Karaman V.P. applied to the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika with the individual complaint with the infringement of his constitutional right to property, as a result of application of the law. The documents submitted show, that the citizen Karaman V.P. is the founder of the society with limited liability "Shelter of Wanderers" and has the property enclosed in actives of the enterprise. On March 16th, 2004 the society with limited liability "Shelter of Wanderers" received from the Republic of Ukraine 10 slot-machines with customs registration in the mode of "temporary import". In accordance with the cargo customs declaration the term of return export of slot-machines from the customs territory of the Pridnestrovskaia Moldavskaia Respublika was established till March 16th, 2005. After the expire of the specified the slot-machines have not been taken out from the customs territory of the Pridnestrovskaia Moldavskaia Respublika.

By the Resolution from May 6th, 2005 the Head of the Customs Office of Tiraspol admitted the fact of committing by the society with limited liability "Shelter of Wanderers" infringement of the customs rules stipulated by Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika and, being guided by Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika, imposed on the society with limited liability "Shelter of Wanderers" the penalty at the rate of 50 % of the cost of the slot-machines with their confiscation. The cassation instance of the Arbitration Court of the Pridnestrovskaia Moldavskaia Respublika has left without change the Resolution of the Head of the Customs Office of Tiraspol about imposing the official penalty on the society with limited liability "Shelter of Wanderers".

The petitioner considers, that the confiscation of the property of the society with limited liability "Shelter of Wanderers" on the decision of the Head of the Customs Office of Tiraspol infringes his rights of the proprietor as in accordance with Part Three Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika no one can be deprived the property, otherwise on court decision.

Grounding on the above mentioned, the citizen Karaman V.P. applies to admit not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika regarding imposing by the customs organs of the sanctions as forfeiture stipulated by Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika. Thus, the petitioner does not dispute constitutionality of the given Articles regarding the powers of the customs organs to impose penalty.

In the essence the citizen Karaman V.P. duisputes constitutionality of the applied in his case Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika according to which the opportunity of confiscation of the goods and vehicles on the decision of the customs organs is stipulated.

2. The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika, considering the given question, grounds on the following regulations of the Constitution of the Pridnestrovskaia Moldavskaia Respublika. The Constitution of the Pridnestrovskaia Moldavskaia Respublika shall have the supreme validity and direct action (Article 2). The Pridnestrovskaia Moldavskaia Respublika shall recognize the state, private and other patterns of ownership. All patterns of ownership at equal degree shall protected by the state (Article 4). A person, his rights and freedoms shall be the supreme value of the society and the state. Protection of rights and freedoms of a person and a citizen shall be the duty of the state (Part One Articles 16). Restriction of rights and freedoms of a person and a citizen shall be admitted solely in the cases stipulated by the law, in the interests of security, social order, protection of morality, healthcare, rights and freedom of other persons (Part One Article 18). The state shall guarantee each person the right to property (Part One Article 37). The proprietor at his own discretion shall own, use and charge his property (Part Two Article 37). No one can be deprived of his property, otherwise on court decision (Part Three Article 37). The judicial power shall be realized by courts by means of constitutional, civil, administrative, criminal and arbitration legal proceedings (Part One item 2 Article 80). Justice shall be realized on the basis of competitiveness and equality of the parties of the process (item 2 Article 85).

3. Part One Article 329 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika stipulates that confiscation as the kind of collecting for the infringement of the customs rules, shall be the compulsory gratuitous manipulation into the property of the state of the property being the instrument of committing, and the direct object of offence. The Head of the Customs Office of Tiraspol, being guided by Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika, imposed on the society with the limited liability "Shelter Wanderers" the collecting as confiscation of the property for the infringement of the customs rules stipulated by Part One Article 353 of the given code. In accordance with the Resolution from May 6th, 2005 ten slot-machines belonging to the society with limited liability "Shelter of Wanderers" shall be subjected to the gratuitous manipulation in the property of the state.

In accordance with Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the state shall guarantee each person the right to property (Part One); the proprietor at his own discretion shall own, use and charge his property (Part Two); no one can be deprived of his property, otherwise on court decision (Part Three). On the sense of the given article in interrelation with Articles 4, 16 (Part One), 17 (Part One), 18 (Part One) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika the state shall guarantee and protect the right to property, shall give the proprietors equal rights and admit restrictions of the rights of the proprietor solely in accordance with the Constitution of the Pridnestrovskaia Moldavskaia Respublika. In accordance with Article 18 (Part One) restriction of rights and freedoms of a person and a citizen shall be admitted solely in the cases stipulated by the law, in the interests of state security, social order, protection of morality, healthcare, rights and freedoms of a person and a citizen. To achievement of the given purposes shall serve the customs regulation, including the established by the Customs Code of the Pridnestrovskaia Moldavskaia Respublika of measures of the legal responsibility, including the measures connected with restriction of the right to property. The given constitutional regulations correspond to the legal norms stipulated in the Convention on protection of human rights and fundamantal freedoms: each physical or juridical person shall have the right to enjoy freely the right to use the property; no one can be deprived of his property, otherwise in the interests of a society and on conditions stipulated by the law and the general principles of the international law (Article 1 of the Report No. 1 from March 20th, 1952).

The constitutional regulation about judicial guarantees of the right to property proceeds inadmissibility of confiscation on decision of the official organ in the simplified procedure not providing consideration of the case in trial, that is inadmissibility of deprivation of the person of his right to property without court decision. The given regulation corresponds to the norms of the international law providing, in particular, the right of each person at definition of his rights and duties in any civil proceeding to just and public trial of the case by the competent, independent and impartial court, created on the basis of the law (Article 14 of the International Pact on civil and political rights from December 19th, 1966; Article 6 of Convention on protection of human rights and fundamantal freedoms).

Confiscation of the property can be appointed solely by court decision made on the case about administrative offence as the court decision on the complaint to Resolution of the official organ about the confiscation of the property applied as the sanction for an offence, shall be insufficient from the point of view of maintenance of judicial guarantees of the right to property. The court procedure shall allow in case of confiscation of the property at the maximum degree to guarantee observance of the fundamental rights of the citizens and juridical persons, to provide at consideration of the case on competitiveness and equality of the parties which comprise the basis of justice (item 2 Article 85 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika). Only in procedure of the administrative legal proceedings is carried out in accordance with item 2 Article 80 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika by the judicial power, it is possible after the wide examination of the materials of the case, to establish the offence and to appoint just and proportional penalty.

The Regulation of Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika, applied to the citizen Karaman V.P., admits confiscation as the measure of responsibility for offence which is connected with deprivation of proprietor of the property on the ground of the decisions made in extrajudicial procedure. Hence, the given regulation restricts opportunities of the appropriate protection of the right to property guaranteed by Part Three Article 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika.

4. In accordance with Part One Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika non export from the customs territory of the Pridnestrovskaia Moldavskaia Respublika of the earlier imported goods and vehicles if such export is obligatory, shall attract imposing of the penalty with confiscation of the goods and vehicles or without it. In accordance with articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika cases on infringement of customs rules, when the punishment is confiscation of the goods and vehicles, shall be considered by the customs organs of the Pridnestrovskaia Moldavskaia Respublika and their officials. And according to Part One Article 329 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika confiscation as the main or additional punishment for infringement of the customs rules, shall be the obligatory gratuitous withdrawal in the state ownership of vehicles, goods and subjects being direct objects of infringement of the customs rules. Thus, Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika allocate the customs organs of the Pridnestrovskaia Moldavskaia Respublika and their officials with the right independently, without decision of court organs to apply sanctions as confiscation which leads to deprivation of property of the citizens, and managing subjects. At the same time Article 37 (Part Three) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika directly specifies that no one can be deprived of the property, otherwise on court decision. Solely the proprietor at his own discretion shall have the right to charge the property belonging to him (Part Two Articles 37 of the Constitution of the Pridnestrovskaia Moldavskaia Respublika).

Part One Article 329 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika in interrelation with its Article 313 procedes that confiscation of vehicles, goods and subjects (property) being direct subjects of infringement of customs rules, shall be the basic or additional punishment for the infringement of the customs rules, that is for illegal action or inactivity of the person encroaching the established by the legislative acts of the Pridnestrovskaia Moldavskaia Respublika on the customs case and international agreement order of their moving. And therefore, at proceedings of the case about the customs offence shall be subjected to approvement as the fact of committing of such offence, and the degree of guilt of the person who has committed the offence. According to the legal position of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika stated in Resolution from June 28th, 2005 No. 04-/05 on the case about the verification of constitutionality of sub-item 4) Part Two Article 210 of the Code of the Pridnestrovskaia Moldavskaia Respublika about administrative offences on the complaint of the citizen Khtema Aleksandr Vasilievich, such circumstances can be established only by the independent competent state organs which are the courts allocated in accordance with the Constitution with the powers on realization of justice in the Pridnestrovskaia Moldavskaia Respublika with observance of the specially stipulated procedure.

On the ground of the above-mentioned the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika comes to the conclusion, that the instruction of Article 37 (Part Three) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika about deprivation of the property otherwise on court decision shall be obligatory in all cases including when there arises the question about application of the sanction as confiscation, that is compulsory gratuitous withdrawal in the property of the state of the property being the direct object of infringement of customs rules.

Hence, regulations of Articles 448, 449 in interrelation with Article 353 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika regarding the right given to the customs organs of the Pridnestrovskaia Moldavskaia Respublika and their officials to consider cases about infringement of the customs rules, as the kind of punishment on which is stipulated confiscation of goods and vehicles being direct objects of offence, restrict the constitutional guarantees of the right to property right and do not correspond to Article 37 (Part Three) of the Constitution of the Pridnestrovskaia Moldavskaia Respublika. The Customs organs of the Pridnestrovskaia Moldavskaia Respublika and their officials considering cases about infringement of the customs rules, are obliged at presence of the grounds for application of confiscation of property to apply to court.

Being guided by Article 2 and item 1 Article 88 of the Pridnestrovskaia Moldavskaia Respublika, Article 12, item c) Part One Article 27, Parts One, two, Four and Five Article 78, Articles 79, 80, 84, 85, 106 of the Constitutional Law of the Pridnestrovskaia Moldavskaia Respublika "About the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika", the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

established:

1. To admit not corresponding to the Constitution of the Pridnestrovskaia Moldavskaia Respublika, its Article 37 (Part Three), regulation Part One Article 353, regulations of Articles 448, 449 of the Customs Code of the Pridnestrovskaia Moldavskaia Respublika regarding the right given to the customs organs of the Pridnestrovskaia Moldavskaia Respublika and their officials to consider cases about infringement of the customs rules, as the kind of punishment on which is stipulated confiscation of goods and vehicles being direct objects of offence.

2. The case on infringement of the customs rules on the part of the society with limited liability "Shelter of Wanderers" shall be subjected to revision on account of the current Resolution.

3. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be final, shall not be subjected to appeal and shall come into force in no event after its declaration.

4. The given Resolution of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika shall be published in The Collection of Legislative Enactments of the Pridnestrovskaia Moldavskaia Respublika, in the newspaper Pridnestrovie and The Bulletin of the Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika.

The Constitutional Court of the Pridnestrovskaia Moldavskaia Respublika

05 / 06




|Organisation and activity |Law fundamentals |Members |Decisions|
|Administrative staff |News |Publications |Photoarchive|
|Contacts |Links |Begin |Search|
|Urgent event|