Social and legal conditionality of customs duties evasion criminal liability

Spirin Pavel Nikolaevich Postgraduate student, Department of Criminal Law and Criminology, Far Eastern Federal University 690922, Russia, Primorsky Krai, village Ajax, no. 10 pn.spirin@gmail.com

Introduction

Criminalization, that is, the elevation of certain socially dangerous acts to the category of criminally punishable, is a rather responsible and complex process that requires the legislator to take into account many factors occurring in social, political and legal reality.

The establishment of criminal liability for the commission of illegal acts in the field of economic activity in this regard is no exception, since, as I. V. Dmitrienko rightly notes: "otherwise, incorrect criminal law regulation of economic activity can have an extremely adverse effect on the existence and development of the domestic economy" ^{[7, p. 14]}.

The works of Z. M. Abdurakhmanov, O. V. Grachev, I. V. Dmitrienko, and others are devoted to the study of the issue of socio-legal conditionality of establishing criminal liability for evasion of customs payments. It is worth noting that the bulk of such research falls on the first decade of the XXI century.

At the same time, the period of the 2010s is characterized by large-scale changes both in the political and economic sphere: the formation of unified customs territories, changes in customs and tariff policy, the creation of customs unions based on the Eurasian Economic Community, the Eurasian Economic Union, of which the Russian Federation is a member, and legislative reforms in the field of criminal counteraction to illegal behavior in the sphere of customs activities in the form of decriminalization of "commodity" smuggling.

Taking into account the changes in the field of criminal legislation in recent years, the development of the sphere of customs relations, we will try to answer the question of the validity of countering this negative phenomenon through criminal law tools.

Public danger as the central basis for criminalization of illegal acts in the field of economics

Since the time of Soviet criminal law science, researchers have identified various circumstances (groups of circumstances) that give rise to an objective need to regulate certain illegal acts within the framework of criminal law, called the grounds for criminalization.

Meanwhile, the authors disagree on the understanding of the list of grounds for the elevation of certain illegal acts to the category of crimes ^{[3, p. 142]}.

A number of scientists identify social danger among the grounds for criminalization as the only true and objective one.

Thus, L. M. Prozumentov, highlighting public danger as the central basis for criminalization, notes that only a "sufficiently high degree of public danger" is a true and fair criterion for distinguishing crimes from other types of offenses ^{[15, p. 35]}.

N. A. Lopashenko also points out socially dangerous behavior as an objective basis for criminalization ^{[12, p. 171]}.

P. S. Tobolkin adheres to a similar approach to the definition of public danger as the only basis for criminalization ^{[16, p. 58]}.

Other authors group the bases according to various criteria. For example, A. I. Korobeev identifies the legal-criminological, socio-economic, socio-psychological factors that are the grounds for criminalization of certain acts. ^{[8, p. 69]}.

Meanwhile, with all the variety of approaches to determining the grounds for criminalization, or, as Yu. I. Bytko rightly put it, "terminological discord", most researchers agree that social danger is fundamental ^{[5, p. 89]}.

In the criminal law doctrine, public danger is understood as a certain property of illegal behavior, which consists in the ability to cause significant harm to certain areas of public relations.

At the same time, public danger is a complex and contradictory phenomenon. The degree of public danger is determined taking into account the established values as a result of the long historical development of society, the state, legal awareness, legal psychology and legal education, norms of morality, culture and religion. That is, on the one hand, there are generally recognized values (life, health, security of society and the state, statehood), and an attempt on these values objectively contradicts the established foundations of society. On the other hand, public danger acts as an evaluative phenomenon, since the line between socially harmful and socially dangerous phenomena is sometimes barely noticeable, especially when it comes to crimes in the field of economics, where the measure of public danger is the amount of damage.

As A. A. Tsybelov rightly notes, public danger, on the one hand, is substantial, and it does not depend on the will of the legislator or law enforcement officer, but at the same time it is a volatile category due to political, socio-economic processes taking place in society ^{[17, p. 108]}.

Currently, it is a common position that all offenses are socially dangerous acts, but crimes have an increased degree of public danger.

It is this point of view that is closer to us. An argument in favor of this point of view is, for example, the content in Article 1.2 of the Administrative Code of the Russian Federation of the tasks of the administrative law on the protection of personality, the protection of human and civil rights and freedoms, the protection of public health, public order and public safety.

As E. I. Kuznetsova and I. V. Filatova rightly point out, the special social danger of crimes in the field of economic activity is caused, along with the undermining of the country's economy and the unfair distribution of material resources in society, by direct economic damage ^{[10, p. 203]}.

Taking into account the above, we will try to answer the question posed in the introduction to this article by analyzing the ability of evasion of customs and other payments to harm public relations in the field of economics.

The validity of criminalization of evasion of customs and other payments

In order to consider the question of the prevalence and typicality of the analyzed criminal act, before assessing its public danger in terms of damage to the national economy, first of all, we will analyze the criminological indicators of the crime provided for in Article 194 of the Criminal Code of the Russian Federation, given in the table below.

Table 1

Dynamics of registered crimes under Article 194 of the Criminal Code of the Russian Federation

(Dynamics of registered crimes under Article 194 of the Criminal Code of the Russian Federation)

Despite the decrease in the end of 2003 of large and especially large criminal amounts of evasion from customs payments from six hundred thousand and one million eight hundred thousand to five hundred thousand and one million rubles, respectively, the number of registered crimes under Article 194 of the Criminal Code of the Russian Federation in 2004 decreased almost twice, and the proportion of the total number of registered customs crimes – by 1.7 times. This negative dynamics demonstrates the specifics of payment evasion in particular, and customs crimes in general, which, as the researchers note, consists in the high latency of this group of crimes ^{[1, p. 20; 2, p. 11; 9, p. 4; 11, p. 7]}. In addition, it should be noted that changes in customs legislation occurred in 2004 in connection with the entry into force of the Customs Code of the Russian Federation, which narrowed the concept of customs payments and regulated in more detail the procedure for customs operations when placing goods under certain "customs regimes" ^{[11, pp. 34-40]}.

            The lowest indicator of the number of registered crimes under Article 194 of the Criminal Code of the Russian Federation for the entire analyzed period was observed in 2010-2011. A significant decrease in the dynamics of the number of registered crimes under this article is a natural consequence of the decisions taken by the domestic legislator. Thus, in the first half of 2010, the large amount of unpaid customs duties was increased 6 times and amounted to 3 million rubles, and an especially large one – 24 times and amounted to 36 million rubles. In addition, these changes are inextricably linked with the entry of the Russian Federation into the EurAsEC Customs Union in July 2010. The main source of legal regulation of relations in the field of customs affairs was the Customs Code of the Customs Union. In accordance with these changes, the territories of the Russian Federation, the Republic of Belarus, and the Republic of Kazakhstan form a single customs territory, which excluded the calculation and collection of customs duties and taxes when moving goods between these countries. 

            Since the end of 2011, the Russian legislator has significantly reduced large and especially large amounts of customs payments in order to apply Article 194 of the Criminal Code of the Russian Federation, as well as differentiated depending on the category of the entity to which the law imposed the obligation to timely pay duties, taxes, excises, etc. In 2013, the approach of differentiating large and especially large The amount of customs duties payable, depending on the category of the subject, was abolished, and the amounts of payments themselves were repeatedly reduced to one and three million rubles, respectively. The reduction in the amount of customs duties payable undoubtedly had a positive effect on the increase in the number of registered crimes during this period.

            Similarly to the previous changes in the dynamics of registered crimes under Article 194 of the Criminal Code of the Russian Federation, the decrease in their number in 2016 was also caused, first of all, by a change in the note to Article 194 of the Criminal Code of the Russian Federation, according to which the amount of large and especially large amounts of customs duties payable was doubled and amounted to two and six million rubles, respectively.

            The decline in registered crimes under Article 194 of the Criminal Code of the Russian Federation in 2018 can be explained by trends similar to the socio-economic events taking place in 2010, namely, the transformation of the Customs Union into the Eurasian Economic Union and the expansion of the single customs territory due to the accession of the Republic of Armenia and the Kyrgyz Republic.

It should be noted that the note to Article 194 of the Criminal Code of the Russian Federation was far from its only modified element.

Of the significant changes made to the article under consideration of the Criminal Code of the Russian Federation, we consider it necessary to note its addition in 2011 with specially qualified formulations providing for liability for officials, for persons who committed a crime with violence against a person carrying out customs or border control, as well as for evasion of payments committed by an organized group (part 3 and 4 of Article 194 of the Criminal Code of the Russian Federation). In addition, such changes should include the expansion of the subject of crime in 2021 due to special, anti-dumping and countervailing duties.

At the same time, based on the data given in Table 1, such changes did not entail really noticeable changes in the dynamics of the number of registered crimes under Article 194 of the Criminal Code of the Russian Federation. For example, since the expansion in 2021 of the subject of the crime under Article 194 of the Criminal Code of the Russian Federation, the number of registered crimes has only decreased. The introduction of these specially qualified formulations cannot directly affect the indicator under consideration.  

            Taking into account the above, the change in the number of registered crimes under the article of the Criminal Law under consideration was influenced by both the processes expressed in the formation of economic unions between states neighboring the Russian Federation and the legislative changes made to the article, however, the decisive role in influencing the analyzed indicators was played by repeated changes in large and especially large amounts of customs, as well as other payments, since in the vast majority of cases, the change in the dynamics of the number of registered crimes in one period or another coincided with a change in the note to the article under consideration of the Criminal Code of the Russian Federation. At the same time, as can be seen from the analysis, these legislative changes were not always consistent and at some stages of the formation of legislation on liability for customs crimes looked like attempts to find legislative support points for taking into account public and private interests in the field of foreign economic activity.

It is also worth noting that, based on these indicators of law enforcement activities of customs authorities, throughout the entire existence of the Criminal Code of the Russian Federation, there has been a steady decrease in the number of criminal cases initiated under Article 194, accompanied by a short-term positive dynamics, however, in our opinion, this trend does not indicate a decrease in the public danger of customs evasion. On the contrary, the negative consequences resulting from the commission of one illegal act can be much more harmful economically than the harm caused by dozens or hundreds of other crimes.

As we noted earlier, the most objective indicator of the public danger of crimes in the field of economic activity is economic damage, in connection with which we will consider the statistical data of law enforcement activities of the customs authorities of the Russian Federation related to countering evasion of customs and other payments.

According to official data from the Federal Customs Service of Russia, customs authorities in 2013 revealed facts of non–payment of customs duties in the amount of 2.5 billion rubles, in 2014 – in the amount of 3 billion rubles, in 2015 - in the amount of 4.3 billion rubles, in 2016 and 2017 revealed facts of non-payment of customs duties in the amount of 5.2 billion rubles in each year, in In 2018 – in the amount of 4.3 billion rubles, in 2019 – in the amount of 6 billion rubles, in 2020 – in the amount of 7 billion rubles, in 2021 – in the amount of 18.8 billion rubles, in 2022 – in the amount of 6 billion rubles ^[14].

The analysis of these statistics makes it possible to note an increase in the annual financial damage to the state budget system, estimated in billions of rubles, by 2.4 times over the past ten years. And despite the general quantitative decrease in the number of criminal cases initiated under Article 194 of the Criminal Code of the Russian Federation in recent years, the public danger of each fact of evasion of customs payments has only increased, which is confirmed by the data set out in the table.

Table 2

The average damage caused by each fact of evasion of customs payments

(The average damage caused by each fact of customs payments evasion)

Based on the data contained in the table, the average damage caused by each fact of customs evasion increased more than 3 times in 2022 compared to 2013 and amounted to 16.3 million rubles, and the largest average damage was recorded in 2021 and amounted to 50.54 million rubles.

It should be noted that each fact of committing a crime provided for in Article 194 of the Criminal Law, on average, causes damage several times greater than the amount of major damage established by both the note to the analyzed article and the total amount of major damage for crimes in the field of economic activity established in the note to Article 170.2 of the Criminal Code of the Russian Federation.

Taking into account the information provided, it can be stated with full confidence that evasion of customs and other payments due in connection with the movement of goods and vehicles across the customs border causes significant economic harm in the form of non-receipt of funds to the revenue side of the state budget.

In addition, as V. M. Andreeva rightly notes, the public danger of evading customs payments lies in the fact that as a result of non-receipt of customs payments due to the budget, obstacles are created to the implementation of the socio-economic policy of the state in the form of the development of education, health, culture. Also, the proceeds from customs evasion are used by criminal structures for the needs of the shadow economy, as a result of which the latter enrich themselves, expanding their negative influence in various spheres of public activity, thereby undermining the economic security of the country ^{[4, p. 146]}.

Legislative reforms in the field of combating customs crime also speak in favor of the validity of criminalization of customs evasion.

Thus, in connection with the entry into force of Federal Law No. 420-FZ dated 07.12.2011 "On Amendments to the Criminal Code of the Russian Federation and Certain Legislative Acts of the Russian Federation", Article 188 of the Criminal Code of the Russian Federation has become invalid. Commodity smuggling has ceased to be a criminal offense due to the fact that the main purpose of smuggling goods, the turnover of which is not prohibited and limited, is to understate the customs duties payable, or to completely exempt them from payment.

In the context of these changes, the protective role of Article 194 of the Criminal Code of the Russian Federation has undoubtedly increased as a tool to counteract the illegal movement of goods across the customs border.

Researchers also speak about the expediency of establishing a criminal law ban on evasion of customs and other payments.

V. M. Andreeva, analyzing the socio-economic reforms of the 90s of the XX century, in her work indicates that the need to criminalize customs evasion is caused by the economic damage caused to the revenue side of the country's budget due to non-payment of customs duties by subjects of foreign economic activity ^{[4, p. 30]}. 

V. V. Lavrinov, speaking about the reasons for the introduction in 1994 of Article 162-6 of the Criminal Code of the RSFSR, which established liability for customs evasion, points to the need to bring criminal legislation into line with modernized relations in the socio-economic sphere ^{[11, pp. 27-28]}.

According to O. V. Grachev, the need to counter customs evasion at the level of criminal prohibition is caused by the liberalization of the foreign economic system, accompanying tax reforms, an increase in the number of independent participants in foreign economic activity, and a decrease in the controlling role of the state in these processes ^{[6, p. 39]}. 

Indeed, the elevation of customs evasion to the category of criminally punishable acts is inextricably linked with the liberalization of foreign economic activity. The criminalization of customs evasion is a natural reflection of the totality of political and economic processes taking place in the above-mentioned historical period in the country: the abolition of the state monopoly on foreign trade, the construction of a market economy model, the emergence of private foreign economic activity, the development of a system of customs relations, and, as a result, the need for legal protection of public relations in the field of calculation and payment of customs duties payments that are a means of forming the federal budget, an instrument for protecting the country's internal market and fair competition between foreign economic activity entities.

The need to counteract criminal evasion of customs and other payments has now not only remained, but also increased, taking into account the modernization of the sphere of customs activity.

Thus, according to the Strategy for the Development of the customs service until 2030, approved by Decree of the Government of the Russian Federation dated 05/23/2020 No. 1388-r, among the goals of improving the work of customs authorities, the completeness of collection of customs payments, as well as the timeliness of their transfer to the budget are highlighted.

At the same time, among the main tasks for the implementation by the customs service of new approaches to the organization and conduct of customs control, the Strategy identifies the identification of payment evasion schemes.

In addition, thanks to the digitalization of the customs infrastructure, modern information technologies make it possible to declare goods electronically from anywhere in the world with access to the Internet, which, of course, expands the range of subjects of foreign economic activity, among which there will be unscrupulous participants.

Conclusions

Thus, despite the decrease in recent years in the number of registered crimes under Article 194 of the Criminal Code of the Russian Federation, due to the transformations of national criminal legislation, as well as the entry of the Russian Federation into the customs Union, factors such as the growth of economic damage caused by criminal evasion of customs payments, the increased role of Article 194 of the Criminal Code of the Russian Federation, taking into account recent legislative changes as the main tool for countering the illegal movement of goods, the turnover of which is not prohibited and is not limited, it can be argued that the validity of the establishment of a criminal law ban on evasion of customs and other payments is beyond doubt. Moreover, thanks to the information and technical development of the customs infrastructure, which contributes to an increase in the number of participants in foreign economic activity, the need to counteract evasion of customs and other payments will only increase over time.