Actions to identify an administrative offense. Administrative offense - composition and types

For misdemeanors, the mandatory law enforcement measure is the opening of proceedings on the offense. This segment of law enforcement activity largely falls within the competence of representatives of law enforcement agencies. In the process of carrying out official duties, the official establishes the identity of the violator, draws up a protocol and ensures further consideration of the case in accordance with the legislative framework of the Russian Federation. In addition, the law enforcement officer is responsible for monitoring the implementation of the decision. But before bringing the offender to administrative responsibility, it is important to prove his guilt. If this principle is not observed, the person cannot be considered guilty.

What is an administrative violation: definition

From the moment of proceedings in an administrative case until its final completion, it is impossible to do without carrying out a chain of necessary processes. The proceedings of administrative cases themselves are a striking example of legal relations carried out within the framework of their public consideration and the adoption of specific decisions on them, up to the use of methods of monetary recovery or arrest.

First of all, you should understand in detail the basic terms of administrative procedural law. To avoid ambiguous interpretation, fundamental concepts require clarification. An administrative offense is defined as any illegal action or inaction for which the law provides for administrative and legal liability for the guilty person. A violator in the context of administrative legislation can be either an individual or a legal entity, a government body, a public association, etc.

The concept of an administrative offense, which contains the key “action” and “inaction”, can be designated by a single term - “action”. Regardless of the form of behavior of the offender, active (action) or passive (inaction), the offense committed by the guilty person entails the imposition of legal liability measures.

Signs of administrative offenses

The main signs of an administrative offense will help to distinguish an unlawful act of an administrative nature from a misdemeanor for which there is no legal liability. These include:

• Antisociality - the action or inaction of a guilty person causes harm to the interests of society, individual citizens or the state.
• Unlawfulness - when committing an administrative tort, the norms of certain legal branches protected by measures of administrative and legal liability are automatically violated.
• Guilt - at the legislative level, an offense is considered if there is guilt of the person (there is intent or negligence) who committed the administrative offense.
• Punishability is an integral feature of a legal tort, which can be recognized as an administrative offense only if there is a prescribed measure of liability for its commission.

To determine the degree of guilt of the offender and assign him the appropriate measure of responsibility, the production of an administrative case must go through a number of mandatory, alternating procedures. The first step on the path to justice and the establishment of illegal actions is the initiation of a case. This stage is regulated by the section of the Code of the Russian Federation on Administrative Offenses (CAO RF), its beginning is considered the moment the tort is identified, and its completion is the transfer of documents on the case to the official authorized to go through further procedural steps.

In what cases are administrative proceedings opened for an offense?

At the stage of initiating a case related to the administrative legal field, great importance is attached to its reasons. The reasons for initiating a case of an administrative offense are procedures, the commission of which is carried out in order to establish a picture of events, create an evidence base, record an offense and determine its qualifications.

The list of reasons that allow you to initiate a case of administrative jurisdiction is very impressive. In accordance with the Code of Administrative Offenses of the Russian Federation, the following legal actions serve as the basis for opening administrative proceedings:

• discovery by an official who has sufficient competence to draw up a protocol on the violation, data and circumstances confirming the commission of an offense;
• receipt from any bodies (including state, local structures, public associations) of materials and data indicating an administrative violation, as well as statements from organizations and citizens, coverage of public messages from the media;
• a video or photo recording obtained during traffic when recording an administrative offense, as well as written confirmation from the owner of the ownership and use of the vehicle by another person at the time of the administrative offense.

Grounds for starting administrative proceedings

The reason for appointing a person is often a statement from the owner, the arbitration manager of the enterprise, or the head of the creditors’ committee about the existence of circumstances provided for by certain articles of the Code (for example, Articles 14.12, 14.13, 14.23). A valid reason for opening proceedings may also be the acquisition of legal significance of the decision of the commission of the antimonopoly structure, which assists in establishing the fact of an administrative offense referred to in Articles 14.31-14.33 of the Code of the Russian Federation.

At the stage of initiating administrative proceedings, the actions of law enforcement agencies aimed at clarifying the time and place of the incident, detailing the picture of the offense, and establishing the identity of the person who committed it are of fundamental importance. The procedural stage of opening a case is characterized by the implementation of measures that clarify the degree of guilt of the offender and the circumstances surrounding the offense. At the same time, determining the motives and conditions of the offense is important for bringing the guilty person to legal responsibility.

At the legislative level, the moment from which the proceedings of an administrative offense can be considered open is described in sufficient detail. The initiation of a case occurs from the moment of an administrative offense case, which most often becomes a protocol of inspection of the scene of an incident, a protocol on the use of measures to ensure administrative proceedings, etc. The proceedings are also considered open from the date of registration of the determination to initiate a case of an administrative offense. This procedure is considered mandatory if it is necessary to conduct an additional investigation in order to accurately clarify the circumstances of what happened or carry out an examination or other procedural measures.

Types of offenses of administrative jurisdiction

The Code of Administrative Offenses of the Russian Federation with comments (Article 28.7) contains explanations to Art. 28.7, which regulates the decision-making process to conduct an immediate investigation into an administrative offense. This issue falls within the terms of reference of the same official who drew up the decision to initiate the case. Similar procedural actions also apply to prosecutorial powers. The prosecutor issues a decision to initiate an administrative case and orders an additional investigation. By the way, the same article of the Code indicates in what areas in case of violation of legal relations there may be a need to conduct an investigation. They may be offenses related to non-compliance with legislation in the following sectors:

• antimonopoly;
• licensing, patent;
• advertising and PR marketing;
• holding elections, referendums;
• regulation and legalization of business profits;
• trafficking in drugs, precursors and psychotropic substances;
• turnover of tobacco and alcohol-containing products;
• currency control;
• protection of consumer, related, copyright rights;
• state regulation of pricing, cost of tariffs for goods and services;
• environmental activities;
• customs and expert control;
• fire safety;
• rules for operating vehicles and driving on the road;
• provision of services for the needs of federal and municipal significance.

The determination to initiate a case of an administrative offense made by an authorized person is accompanied by an explanation to the participants in the proceedings of their procedural rights and obligations, according to the Code of Administrative Offenses of the Russian Federation.

A copy of the document is given to the injured party and the person in respect of whom it was drawn up - an individual or legal entity.

Peculiarities of the investigation in the case of administrative proceedings

The investigation is carried out within the time limits established by law, on the basis of an act on the case of an administrative offense. It is worth noting that the place for its conduct should be the territory of the commission or identification of a legal tort. The investigation is carried out by an authorized person, in other cases provided for by law - by his deputy or another official with sufficient competence for this purpose.

The timing of the inspection cannot exceed 30 days from the date of the decision to initiate an administrative violation case. The established period may be increased by 1 or 6 months upon a written application from the person involved in the proceedings of the case. The decision to extend the deadlines, drawn up in the form of a ruling, is made by the head of the body or his deputy, a copy of which is handed over personally to the victim and accused parties against signature.

As soon as the administrative investigation comes to an end, a report is drawn up. If its results do not provide grounds for further proceedings, the authorized person issues a resolution to terminate the proceedings. In this case, the offender, as well as the victim, is given the opportunity to familiarize himself with the compiled protocol, give explanations, clarify the contents and point out inaccuracies in the protocol itself or the documents attached to it on the initiation of an administrative offense case.

In some cases, the protocol may be drawn up in the absence of the person who committed the offense. After the ruling is made, the participants in the proceedings are sent a notice of the initiation of a case regarding an administrative offense. If the violator or injured party fails to appear, a copy of the compiled protocol is sent to the place of their permanent registration no later than three days after the document is issued.

Reasons for canceling administrative proceedings

To close a case, at least one of the conditions provided for by law must be present:

• absence of an administrative violation;
• incomplete (including taking into account the legal capacity and sanity of an individual);
• the commission of a tort by a person under 16 years of age;
• the offender had no choice of action;
• issuing an amnesty implying the elimination of punishment;
• termination of the legislative act that established administrative responsibility;
• expiration of the statute of limitations for filing a claim.

In addition, if at the same time, on a single fact, criminal and administrative proceedings were conducted, a decision was made to initiate a case, terminate it, or impose a penalty, the administrative proceedings are stopped. In the event of the death of the individual responsible, the investigation is also terminated.

Drawing up an administrative protocol using the example of an accident

In case of fixed violations of the Traffic Rules, including in case of dishonest operation of a vehicle, which resulted in harm to the health of the victim, a protocol for examining the scene of the offense is drawn up. This document is also drawn up if the cause of the traffic violation was the negligence of a pedestrian or vehicle passenger.

When recording the scene of an accident, the presence of two witnesses is required; the document is drawn up without delay and without leaving the area of ​​the accident. The protocol itself must contain the following information:

• about the main signs of an administrative offense;
• on the procedure for the actions of officials and law enforcement officers drawing up a protocol for examining the crime scene;
• about the quality of the road surface, its condition, the presence of appropriate traffic regulations markings on it;
• about the degree of illumination of the road section in question;
• about the regulation of the intersection at which the offense occurred;
• about traffic light malfunctions;
• about the absence of priority road signs;
• about other circumstances that are important for initiating a case.

Check in a case of administrative violation

During the preparation of the protocol, it records that the rights and obligations of the persons present during the inspection procedure were clearly explained in accordance with the law. In addition, statements from the participants are attached to the inspection protocol, and a record is made of the use of means for photographing and video recording, and other permitted methods of recording the picture of the incident and material evidence.

After drawing up the protocol, the official and the rest of those present - participants in the procedure for examining the crime scene, including witnesses and the culprit of the accident, put their signatures below. Copies of the signed protocols are handed over to the offender driving the vehicle at the time of the incident. In the case of sending an inspection of procedural proceedings, which is carried out at the place of the direct offense, the need to carry out an administrative investigation disappears by itself.

The Code of Administrative Offenses of the Russian Federation, as amended (Article 28.5), notes that the commission of an offense under obvious conditions is grounds for an inspection in the near future. After discovering the scene of an accident and identifying additional signs of a wrongful act, the inspection is carried out within a time frame that makes it possible to discover fundamentally important circumstances of the case, incl. information about the violator (individual or organization), if a decision has been made against him to initiate a case for an administrative offense. The inspection is carried out within two days from the moment violations are detected.

Completion of the stage of initiating a case of an offense

Art. 28.1 of the Code of Administrative Offenses of the Russian Federation regulates the moment of completion of a production inspection. When the case is transferred to an official authorized for its further consideration, in the event of closure of the proceedings, a determination is made to refuse to initiate the case. According to Art. 28.1 of the Code of Administrative Offenses of the Russian Federation, the reason for refusal is the absence of an offense in the available materials, messages and statements of the case.

There is no need to draw up a protocol if the guilty person is brought to administrative responsibility in the form of an oral warning or a fine in one amount of the minimum wage, and in case of violations of customs legislation - in ten times. The possibility of administrative punishment, providing for the imposition of a penalty without drawing up a protocol, is recognized as a simplified type of proceeding.

The Code of Administrative Offenses of the Russian Federation, with comments, describes in detail the mechanism for returning a document to the person who compiled it if there are significant defects in the protocol. Any inconsistencies must be eliminated by the official within three days, and changed or supplemented materials must be returned to the main participant in the administrative offense within 24 hours.

271. When identifying signs of an administrative offense, employees of the PPSP units are guided by the legislation of the Russian Federation, as well as legislative and other regulatory legal acts of the constituent entities of the Russian Federation, orders of the Ministry of Internal Affairs of Russia. They are obliged:

271.1. Immediately demand that the unlawful behavior cease.

271.2. Check the identity documents of the offender.

271.3. Record the information found in them.

271.4. Establish and record information about witnesses (if any), explain to witnesses their rights and obligations in accordance with current legislation.

271.5. Determine the circumstances to be clarified in the case:

271.5.1. The presence of an administrative offense event.

271.5.2. A person who has committed illegal actions.

271.5.3. Guilt of a person in committing an administrative offense.

271.5.4. Circumstances excluding proceedings in a case of an administrative offense.

271.5.5. Other circumstances that are important for the correct resolution of the case, as well as the reasons and conditions for committing an administrative offense.

271.6. Draw up a protocol on an administrative offense in accordance with the requirements of Article 28.2 of the Code of the Russian Federation on Administrative Offences.

272. The sequence of actions of PPSP employees is determined based on the nature of the offense committed, the composition of the squad and other circumstances.

273. The main tasks of the outfits are:

273.1. Suppression of an administrative offense and detention of the offender.

273.2. Ensuring the quality and completeness of material on administrative offenses.

273.3. Documentation of an illegal act.

274. In order to draw up a protocol on an administrative offense provided for by the Code of Administrative Offenses of the Russian Federation, if it is impossible to draw it up at the place where the administrative offense was detected, in accordance with Article 27.2 of the Code of Administrative Offenses of the Russian Federation, individuals are delivered to the office premises of the nearest internal affairs body or to the premises of a local government body.

275. A protocol on delivery is drawn up or a corresponding entry is made in the protocol on an administrative offense or the protocol on administrative detention.

Extracts from the Code of the Russian Federation on Administrative Offenses (CAO RF)

Article 19.17. Illegal seizure of a citizen’s identity card (passport) or acceptance of a citizen’s identity card (passport) as collateral

1. Illegal seizure by an official of a citizen’s identity card (passport) -

2. Acceptance of a citizen’s identity card (passport) as collateral -

entails a warning or the imposition of an administrative fine in the amount of one hundred rubles.

Article 20.1. Petty hooliganism

1. Petty hooliganism, that is, a violation of public order, expressing clear disrespect for society, accompanied by obscene language in public places, offensive harassment of citizens, as well as destruction or damage to someone else’s property, -

shall entail the imposition of an administrative fine in the amount of five hundred to one thousand rubles or administrative arrest for a term of up to fifteen days.

2. The same actions associated with disobedience to the lawful demand of a government representative or other person performing duties to protect public order or suppressing violations of public order -

shall entail the imposition of an administrative fine in the amount of one thousand to two thousand five hundred rubles or administrative arrest for a term of up to fifteen days.

Article 20.2. Violation of the established procedure for organizing or holding a meeting, meeting, demonstration, procession or picketing

1. Violation of the established procedure for organizing a meeting, meeting, demonstration, procession or picketing -

shall entail the imposition of an administrative fine on the organizers in the amount of one thousand to two thousand rubles.

2. Violation of the established procedure for holding a meeting, rally, demonstration, procession or picketing -

entails the imposition of an administrative fine on the organizers in the amount of one thousand to two thousand rubles; for participants - from five hundred to one thousand rubles.

3. Organizing or holding an unauthorized meeting, rally, demonstration, procession or picketing in the immediate vicinity of the territory of a nuclear installation, radiation source or storage facility for nuclear materials or radioactive substances, as well as active participation in such actions, if this has complicated the performance of official duties by the personnel of the specified facilities duties or created a threat to the safety of the population and the environment, -

shall entail the imposition of an administrative fine in the amount of one thousand to two thousand rubles or administrative arrest for a term of up to fifteen days.

Article 20.20. Drinking beer and drinks made on its basis, alcoholic and alcohol-containing products, or consumption of narcotic drugs or psychotropic substances in public places

1. Drinking beer and drinks made on its basis, as well as alcoholic and alcohol-containing products with an ethyl alcohol content of less than 12 percent of the volume of finished products in children's, educational and medical organizations, on all types of public transport (public transport) of urban and suburban traffic , in cultural organizations (except for organizations or public catering establishments located in them, including those without the formation of a legal entity), physical education, health and sports facilities -

shall entail the imposition of an administrative fine in the amount of one hundred to three hundred rubles.

2. Drinking alcoholic and alcohol-containing products with an ethyl alcohol content of 12 percent or more of the volume of the finished product on the streets, stadiums, squares, parks, in a public vehicle, and in other public places (including those specified in Part 1 of this article), with the exception of trade and public catering organizations where the sale of alcoholic beverages by the glass is permitted -

shall entail the imposition of an administrative fine in the amount of five hundred to seven hundred rubles.

3. Consumption of narcotic drugs or psychotropic substances without a doctor’s prescription, or consumption of other intoxicating substances on the streets, stadiums, squares, parks, in a public vehicle, as well as in other public places -

shall entail the imposition of an administrative fine in the amount of four thousand to five thousand rubles or administrative arrest for a term of up to fifteen days.

4. The actions specified in part 3 of this article, committed by a foreign citizen or stateless person, -

shall entail the imposition of an administrative fine in the amount of four thousand to five thousand rubles with administrative deportation from the Russian Federation, or administrative arrest for a term of up to fifteen days with administrative deportation from the Russian Federation.

Article 20.21. Appearing in public places while intoxicated

Appearing on the streets, stadiums, squares, parks, in a public vehicle, or in other public places in a state of intoxication that offends human dignity and public morality, -

shall entail the imposition of an administrative fine in the amount of one hundred to five hundred rubles or administrative arrest for a term of up to fifteen days.

Article 20.22. The appearance of minors in a state of intoxication, as well as their drinking of beer and drinks made on its basis, alcoholic and alcohol-containing products, their consumption of narcotic drugs or psychotropic substances in public places

The appearance of minors under the age of sixteen in a state of intoxication, as well as their drinking of beer and drinks made on its basis, alcoholic and alcohol-containing products, their consumption of narcotic drugs or psychotropic substances without a doctor’s prescription, other intoxicating substances on the streets, stadiums, and public gardens , parks, in a public vehicle, in other public places -

shall entail the imposition of an administrative fine on parents or other legal representatives of minors in the amount of three hundred to five hundred rubles.

Article 27.2. Delivery

1. Delivery, that is, forced transfer of an individual for the purpose of drawing up a protocol on an administrative offense if it is impossible to draw it up at the place where the administrative offense was detected, if drawing up a protocol is mandatory, is carried out by officials of the internal affairs bodies (police) when identifying (any) administrative offenses.

2. Delivery must be made as soon as possible.

3. A protocol on delivery is drawn up or a corresponding entry is made in the protocol on an administrative offense or in the protocol on administrative detention. A copy of the delivery protocol is given to the delivered person at his request.

Article 27.3. Administrative detention

1. Administrative detention, that is, short-term restriction of the freedom of an individual, can be applied in exceptional cases, if this is necessary to ensure the correct and timely consideration of a case of an administrative offense, the execution of a decision in a case of an administrative offense. Officials of internal affairs bodies (police) have the right to carry out administrative detention when (any) administrative offenses are detected.

3. At the request of a detained person, relatives, the administration at the place of his work (study), as well as a defense lawyer are notified of his whereabouts as soon as possible.

4. His parents or other legal representatives must be notified of the administrative detention of a minor.

5. The detained person is explained his rights and obligations provided for by this Code, about which a corresponding entry is made in the protocol on administrative detention.

Article 27.4. Protocol on administrative detention

1. A protocol on administrative detention is drawn up, which indicates the date and place of its preparation, the position, surname and initials of the person who compiled the protocol, information about the detained person, the time, place and reasons for the detention.

2. The protocol on administrative detention is signed by the official who compiled it and the detained person. If the detained person refuses to sign the protocol, a corresponding entry is made in the protocol on administrative detention. A copy of the protocol on administrative detention is given to the detained person at his request.

Article 27.5. Terms of administrative detention

1-3. The period of administrative detention should not exceed three hours, with the exception of cases where administrative arrest is provided as one of the measures of administrative punishment, then a citizen may be subjected to administrative detention for a period of no more than 48 hours.

4. The period of administrative detention of a person is calculated from the moment of delivery in accordance with Article 27.2 of this Code, and of a person in a state of intoxication, from the time of his sobering up.

Article 27.6. Place and procedure for detainees

3. Minors subject to administrative detention are kept separately from adults.

In accordance with paragraph 1, paragraph 1 of Art. 28.1 of the Code of Administrative Offenses of the Russian Federation, one of the reasons for initiating a case of an administrative offense is the direct discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the presence of an event of an administrative offense.

Direct detection of sufficient data indicating the presence of an administrative offense event and the initiation of a case of administrative offenses occurs, as a rule, when authorized officials of customs authorities carry out various activities within the framework of customs control.

Note that the concept of customs control is one of the basic ones in the field of customs regulation. When characterizing customs control, it is advisable to proceed from the fact that the concept of customs control can be disclosed in a broad and narrow sense.

The definition given in Article 4 of the Customs Code of the Customs Union is associated with a broad understanding of customs control, in accordance with it Customs control –a set of measures carried out by customs authorities, including using a risk management system, in order to ensure compliance with the customs legislation of the Customs Union and the legislation of states– members of the Customs Union. To one degree or another, all activities of customs authorities can be associated with customs control in this understanding. To clarify this term, a narrow definition should be highlighted, resulting from an analysis of the content of the Customs Code of the Customs Union in general and Section 3 in particular. In a narrow sense customs control -a set of verification actions in certain forms that are sufficient to ensure compliance with and identify violations of customs legislation.2

Analyzing the concept of customs control, we can highlight it character traits:

1. Customs control is one of the types of state control, which is characterized by the principles of exercising the control function by state authorities. It is generally accepted that the Federal Law of August 8, 2001 No. 134-FZ “On the protection of the rights of legal entities and individual entrepreneurs during state control (supervision)” does not apply to it due to the specifics of customs relations

2. Forms of customs control and procedures, as a rule, are imperatively established by the legislator.

3. Legal regulation of customs control is associated with the use of a significant number of acts of the member states of the Customs Union.

It is possible to classify the actions of customs authorities aimed at implementing customs control.

Depending on the object to which customs control is directed, we can distinguish:

– customs control of goods;

– customs control of international transport vehicles.

Depending on the direction of movement of goods, it varies

– customs control of goods imported into the territory of the Customs Union;

– customs control of goods exported from the territory of the Customs Union.

The most widely used method is the classification of customs control according to the forms of its implementation, fixed in Article 110 of the Customs Code of the Customs Union.

According to the time of customs control, the following are distinguished:

– preliminary control(before importing goods into the customs territory);

– current(carried out after the importation of goods and vehicles of international transport and before their release),

– subsequent(carried out after goods lose their status under customs control).

Modern trends in the field of customs regulation indicate an increase in the share and importance of verification activities carried out as part of subsequent control, which corresponds to global practice and the principles of the Kyoto Convention.

As part of this trend, the legislator has significantly increased the period during which customs authorities have the right to verify the accuracy of the information declared during customs clearance after the release of goods. In accordance with Art. 99 of the Customs Code of the Customs Union, the deadline during which subsequent control is possible is three years from the day the goods lose their status under customs control.

There is no normatively fixed concept of forms of customs control. It is generally accepted that forms of customs control- This separate categories of verification actions of customs authorities aimed at implementing customs control.

The list of forms of customs control is normatively fixed in Art. 110 of the Customs Code of the Customs Union, according to which the forms of customs control are:

1) verification of documents and information;

2) oral survey;

3) obtaining explanations;

4) customs surveillance;

5) customs inspection;

6) customs inspection;

7) personal customs inspection;

8) checking the marking of goods with special marks, the presence of identification marks on them;

9) customs inspection of premises and territories;

10) accounting of goods under customs control;

11) checking the goods accounting and reporting system;

12) customs inspection.

Checking documents and information- a form of customs control used by a customs official in order to establish the reliability of information, the authenticity of documents and (or) the correctness of their completion and (or) execution. The purposes of applying this form of customs control are:

– checking the accuracy of the information contained in the documents (data about the carrier, recipient of the goods, declarant, information about the goods being moved, etc.);

– establishing the authenticity of documents (validity period, availability and necessary details;

– checking the correctness of the documents (correctness of filling out the relevant fields of the customs declaration, compliance with the instructions for filling them out).

This form of control is characterized by:

1. wide possibilities for use;

2. regulation of the inspection procedure by separate acts establishing the procedure for performing individual customs operations;

3. The customs authority has the right to reasonably request additional documents necessary for verification, which does not, as a general rule, entail an extension of the release period and the obligation of the declarant or other person to provide documents, unless this is expressly provided for by law.

Oral survey- a form of customs control used by customs authorities during customs clearance, which consists of obtaining the necessary information from persons, without formalizing the explanations of these persons in writing.

Receiving explanations -receipt by customs officials from carriers, declarants and other persons who have information about circumstances relevant for the implementation of customs control, the necessary information in the field of customs affairs.

1) the presence, in contrast to an oral survey, of a form and explanations fixed by acts of the Commission of the Customs Union;

2) giving explanations is the obligation of persons associated with the movement of goods across the customs border;

Customs surveillance -public, targeted, systematic or one-time, direct or indirect visual observation, including with the use of technical means, by customs officials of the transportation of goods, including vehicles under customs control, of acts committed with them cargo and other operations.

There is no detailed regulation of the use of this form of customs control. Customs officials are bound only by the general principles of control during its application. Surveillance can be carried out both in customs control zones and outside them, for example:

– when unloading vehicles;

– when taking samples and specimens;

– When moving goods to a temporary storage warehouse, etc.

Customs inspection– external visual inspection of goods, including vehicles, luggage of individuals, as well as cargo containers, customs seals, seals and other means of identification, without opening vehicles, packaging goods, dismantling or violating the integrity of inspected objects and their parts by other means.

This form of control is characterized by:

1) preservation of seals and packaging of the integrity of goods, which distinguishes this form of control from inspection;

2) the optional presence of the declarant during the inspection;

3) lack of formal grounds for applying the form of customs control;

4) establishment at the level of the Commission of the Customs Union of the form of the inspection report1;

5) the obligation to fill out the act in the event that its results will be used in further customs operations.

customs inspection– actions of customs officials related to opening the packaging of goods or cargo space of a vehicle or containers, containers and other places where goods are or may be located, in violation of the customs seals or other means of identification placed on them, disassembly, dismantling or violating the integrity of the objects being examined and their parts by other means.

Customs inspection is one of the main forms of customs control, the legal regulation of which is given considerable attention, both in the acts of the Customs Union and in Russian legislation.

It is possible to highlight the basic principles of conducting an inspection:

– inadmissibility of causing unlawful harm to persons moving goods across the border:

– the need to record the results of the inspection in a special form;

– availability of grounds for conducting various types of inspection.

Types of customs inspection vary depending on:

– grounds for inspection (main, repeated, identification);

– the object of inspection (inspection of goods and inspection of vehicles for international transportation);

– depth of inspection (with partial opening of cargo packages, with recalculation and weighing, with opening of packaging, etc.).

Most of the rules governing inspections relate to national legislation.

Rights and obligations of customs officials

during customs control

Executive obliged:

– notify the declarant or other person with authority in relation to the goods about the place and time of the customs inspection, if these persons are known;

– hand over (send) the second copy of the customs inspection report to the person with authority in relation to the goods, or his representative, if this person is identified;

– involve 2 witnesses in case of absence of the declarant during the inspection/

Executivehas the right :

– carry out customs inspection in the absence of the declarant, other persons with authority in relation to goods, and their representatives in the cases specified in paragraph 5 of Article 116 of the Customs Code of the Customs Union;

– require the declarant and other persons with authority in relation to the goods, and their representatives, to be present during customs inspection and provide the necessary assistance;

– during customs inspections carried out during customs inspections of premises and territories and (or) during on-site customs inspections, carry out customs inspections without creating customs control zones.

Foreign trade participanthas the right:

– be aware of the place and time of customs inspection;

– on your own initiative to be present at the customs inspection;

– receive a customs inspection certificate.

Foreign trade participant must:

– to be present at the customs inspection and provide due assistance to the customs authority, at the request of the customs authority. The results of the inspection are documented in an act of the established form.

1 Decision of the Customs Union Commission dated May 20, 2010 No. 260 “On the forms of customs documents.”

Personal inspection– an exceptional form of customs control applied to an individual, if there is reason to believe that the individual traveling across the customs border and located in the customs control zone or the transit zone of an international airport is hiding on his person and does not voluntarily release goods moved in violation of the customs legislation of the Customs union.

The legal regulation of this form of customs control is quite detailed due to the fact that conducting a personal search affects basic constitutional human rights, first of all, the right to personal integrity.

Reasons for personal search of passengers may be:

– data on the presence of items in the possession of an individual that are hidden from customs control in the customs control zone;

– information about the facts of transfer of objects from the transit zone of the airport to the rest of the port territory (or vice versa);

– operational data on the illegal transportation of certain items (narcotics, counterfeit currency, weapons) withdrawn from free circulation, if the obligation to detect and suppress such movement stems from international treaties with the participation of the Russian Federation. The competence to make a decision on the need to conduct a personal search is vested in the head of the customs authority, his deputy, or a person replacing them.

The decision to conduct a personal search is made in writing by:

– imposing a resolution on the report of a customs official;

– execution of a separate act.

Basic rules for conducting personal searches.

1. Participants in the personal search (customs official, medical worker, witnesses) must be of the same sex as the person being searched;

2. Before the start of a personal search, a customs official is obliged to familiarize the person being searched with the decision to conduct a personal search, announce to the person being searched his rights and obligations, and offer to voluntarily hand over the hidden items;

3. The President of the Russian Federation, deputies of the Federal Assembly of the Russian Federation, Judges of the Constitutional Court of the Russian Federation, judges of the Russian Federation, prosecutors and investigators of the prosecutor's office, employees of the federal security service and a number of other persons cannot be subjected to personal search;

4. Personal search can be carried out only in a separate isolated room that meets sanitary and hygienic requirements. Access to this premises by other individuals and the possibility of observing the personal search on their part must be excluded;

5. Personal search is carried out in a correct manner, excluding humiliation of personal dignity and causing unlawful harm;

6. A report is drawn up on the conduct of a personal search (in two copies)1;

7. During the search, the person being searched has the right to give explanations and submit petitions; use a language he understands or the services of an interpreter; familiarize yourself with the contents of the personal search report and make comments on it, as well as receive a second copy of this report.

1Decision of the Customs Union Commission dated May 20, 2010 No. 260 “On the forms of customs documents.”

Checking the marking of goods with special marks and the presence of identification marks on them– a form of customs control carried out by customs authorities in order to check the presence on goods or their packaging of special marks, identification marks or other means of designating goods used to confirm the legality of their import into the customs territory of the Customs Union.

This form of customs control is applied, as a rule, in relation to goods that are not under customs control. The purpose of checking the marking of goods with special marks, the presence of identification marks on them or other ways of designating goods is to confirm the legality of their import into the customs territory. For example, alcoholic beverages, tobacco and tobacco products imported into the customs territory of the Customs Union and released for domestic consumption must be marked with special excise stamps, the absence of which may indicate the illegal nature of the movement, unless the owner of the goods proves otherwise.

The burden of refuting the facts revealed by the customs authorities rests with the person in whose possession such goods were found

Customs inspection of premises and territories– a form of customs control carried out in order to confirm the presence of goods under customs control, including conditionally released ones, in places of temporary storage, customs warehouses, in the premises of a duty-free store and other places where goods under customs may be located possible control, as well as from persons who must have goods in accordance with the terms of customs procedures provided for by the Customs Code of the Customs Union.

Basic rules for conducting inspections of premises and territories.

1) it is allowed to inspect the premises of persons providing services in the field of customs affairs (temporary storage warehouses, customs warehouses, duty-free shops), inspect the premises where goods under customs control are stored (for example, the warehouse of the recipient of goods, where temporary storage is carried out), from persons those engaged in trade in goods, storing goods in places that are not customs control zones, if there is information about the presence on the premises or territories of these persons of goods imported into the customs territory in violation of customs rules, as part of a customs inspection;

2) customs inspection of residential premises is not allowed;

3) the decision to conduct a customs inspection of premises and territories is made by the head of the customs authority or a person replacing him, with the exception of cases of conducting a customs inspection of premises and territories during an on-site customs inspection;

4) when conducting an on-site customs inspection, the decision to conduct a customs inspection of premises and territories is made by the head of the commission;

5) the decision to conduct a customs inspection of premises and territories is formalized in writing in the form of an order to conduct a customs inspection of premises and territories in a form approved by the Federal Customs Service of Russia;

6) customs inspection of premises and territories during an on-site customs inspection is carried out on the basis of a decision to conduct an on-site customs inspection;

7) the results of the customs inspection of premises and territories are documented in an act in the prescribed form.

Customs check– a form of customs control, which consists of customs authorities conducting a check of compliance with the requirements of customs legislation among a certain circle of persons by comparing the information contained in the documents presented when placing goods under the customs procedure, and other information available to the customs authority, with the data accounting and reporting, with accounts and other information received in the manner established by the customs legislation of the Customs Union and the legislation of the member states of the Customs Union.

The following types of customs checks are distinguished:

– Desk customs inspection;

– On-site customs inspection (Clause 7, Article 122 of the Customs Code of the Customs Union).

Characteristics of desk customs inspection.

As follows from Article 131 of the Customs Code of the Customs Union, a desk customs inspection is carried out by studying and analyzing information contained in customs declarations, commercial, transport (transportation) and other documents submitted by the person being inspected, information from regulatory government bodies of the member states of the Customs Union, as well as other documents and information available to customs authorities about the activities of these persons. Desk customs inspections are carried out without restrictions on the frequency of their conduct.

A desk customs inspection is carried out by customs authorities at the location of the customs authority without visiting the person being inspected, as well as without issuing an order (act of appointment of the inspection).

Characteristics of on-site customs inspection.

An on-site customs inspection is carried out by the customs authority with a visit to the location of the legal entity, the place of activity of an individual entrepreneur and (or) to the place of actual implementation of their activities (Article 132 of the Customs Code of the Customs Union)

The following types of on-site customs inspection are distinguished:

– planned;

– unscheduled.

Scheduled on-site customs inspections are carried out on the basis of inspection plans developed by customs authorities. In turn, the grounds for an unscheduled customs inspection are events, an exhaustive list of which is given in paragraph 7 of Article 132 of the Customs Code of the Customs Union.

An on-site customs inspection is carried out on the basis of a decision (instruction, act on the appointment of an inspection), the form of which is determined by the legislation of the member states of the Customs Union.

If unscheduled on-site customs inspections are carried out without restrictions on the frequency of their conduct, then for a scheduled customs inspection the legislator establishes the following frequency: no more than once a year in relation to the same inspected person, and in relation to authorized economic operators – once every 3 years.

The legislator establishes the rules for selecting inspected persons for a scheduled on-site customs inspection, determines the procedure for conducting an on-site customs inspection, establishes the rights and obligations of both customs officials and the inspected person during a customs inspection, determines the procedure for access of customs officials to object of the person being inspected for conducting an on-site customs inspection.

The Customs Code of the Customs Union establishes that the period for conducting an on-site customs inspection should not exceed 2 months. The specified period does not include the period of time between the date of delivery to the person being inspected of the request for the submission of documents and information and the date of receipt of such documents and information.

There is provision for an extension of the specified period by 1 (one) month by decision of the customs authority carrying out the inspection.

The date of completion of the on-site customs inspection is the date of drawing up the document drawn up based on the results of the customs inspection.

Rights and obligations of customs officials during customs inspections1

1 In accordance with the order of the Federal Customs Service of the Russian Federation dated March 16, 2011 No. 578 “On approval of the Instructions on the actions of customs officials during customs inspection of premises and territories”

Rights of officials :

– enter the premises and territory of the customs inspection, including suppressing resistance and opening locked premises in the presence of 2 (two) witnesses;

– require persons with authority in relation to goods and their representatives to present goods for inspection;

– attract specialists and experts to assist in inspecting premises and territories.

Responsibilities of officials:

– carry out customs inspection of premises and territories within the established time frame (1 day, in exceptional cases no more than 3 days);

– enter into the customs inspection report of premises and territories information identified as a result of the customs inspection of premises and territories, as well as explanations of persons present during the customs inspection of premises and territories;

– not to cause unlawful damage to goods and premises;

– ensure compliance with the rights and legitimate interests of persons with authority in relation to the goods, their representatives, as well as the owner or user of the premises and other persons present during the inspection;

– keep state and other secrets protected by law, and also not disclose information that has become known to them in connection with the inspection;

Accounting for goods under customs control– a form of customs control that allows customs authorities to accumulate information about goods moved across the customs border, including using information systems and technologies.

The introduction of this form of customs control is an innovation of the Customs Code of the Customs Union. All powers to determine the procedure for applying this form of customs control have been transferred to the member states of the Customs Union. An example of an act regulating the accounting of goods in Russia is Order of the Federal Customs Service of the Russian Federation dated January 13, 2011 No. 74 “On approval of the Procedure for accounting by customs authorities of conditionally released goods under customs control.”

Checking the goods accounting and reporting system– a form of customs control that grants the right to customs authorities to control the system of accounting and reporting on goods moved across the customs border by persons for whom maintaining such records is mandatory.

Customs authorities control the accounting and reporting system:

– from authorized economic operators;

– from persons carrying out activities in the field of customs affairs;

– from persons using and owning foreign goods.

The form and procedure for submitting reports are determined by the legislation of the member states of the Customs Union, in Russia - by acts of the Federal Customs Service

Methods of customs control

Along with the forms of customs control enshrined in Art. 110 of the Customs Code of the Customs Union, there is a significant number of customs operations related to the implementation by customs authorities of the functions of control and supervision in the field of customs affairs. In this regard, it is possible to formulate a concept that is absent in customs legislation - customs control methods, under which refers to the actions of customs authorities that facilitate the implementation of various forms of customs control. Due to the lack of a legal definition of customs control methods, their list is open. Methods of customs control include:

– requesting documents and information;

– customs identification;

– examinations and research;

– detention of goods.

Requesting necessary documents and information is a condition for using such forms of control that initially involve working with certain documents and information. Such forms of control include, for example, verification of documents and information, customs inspection, verification of the accounting and reporting system

In accordance with paragraph 3 of Art. 111 of the Customs Code of the Customs Union, when conducting customs control, the customs authority has the right to reasonably request additional documents and information solely for the purpose of verifying the information contained in the customs declaration and other customs documents. The customs authority requests such documents and information in writing.

In accordance with paragraph 1 of Art. 121 of the Customs Code of the Customs Union, customs authorities have the right to demand from persons carrying out activities in the field of customs affairs reporting on stored, transported, sold, processed and (or) used goods, as well as on customs operations performed.

Customs identification– a method of performing customs control used by customs authorities in order to specify the subject of inspection, that is, paying attention to certain individual characteristics of the subject (integrity of customs identification means, establishing the identity of the characteristics of the product with its documentary description, etc.).

The use of identification in the process of customs clearance and control in many cases is a necessary condition for carrying out customs operations, for example:

– when registering customs transit (Article 216 of the Customs Code of the Customs Union);

– when applying the customs regime of temporary import (Article 278.1 of the Labor Code of the Customs Union);

– during customs control of goods containing intellectual property (Article 333.3 TK CU).

The list of identification methods is open and can be supplemented taking into account the general principles of customs control. Typically, methods of reflecting individual characteristics during identification include:

– application of seals and seals;

– application of digital, alphabetic and other markings;

– imposition of identification marks;

– affixing stamps;

– taking samples and specimens;

– description of goods;

- drawing up drawings.

Customs identification can contribute to the production of such forms of customs control as:

– customs inspection of goods;

– customs inspection of goods;

- verification of documents;

– checking the labeling of goods.

Customs examination– organizing and conducting research carried out by customs experts and (or) other experts using special and (or) scientific knowledge to solve problems in the field of customs regulation(Article 137 of the Labor Code of the Customs Union).

Goals customs examination are:

– identification of facts of false declaration;

– establishing the authenticity of documents, the method of producing document details, how long ago handwritten notes (texts) were made, etc.;

– establishing the correctness of collection of customs duties;

– establishing the quality of goods;

– research of the quantitative and qualitative composition of goods for identification and compliance with the Unified Standards of Foreign Economic Activity of the Customs Union;

– establishing compliance of goods with the customs declaration;

– establishing compliance of goods with safety standards;

– assessment and coordination of yield standards for processed products, taking into account the technology used in customs territories and other territories;

– assessment of the presence of goods in processed products (since the latter are subject to other customs duties);

– research of the chemical composition and physical properties of goods;

– determination of the presence of prohibited drugs or drugs for the manufacture of drugs in a product, which are subject to control;

– determination of the artistic and cultural value of goods.

An examination is appointed in cases where special knowledge is required to clarify issues that have arisen in the process of performing customs operations.

The appointment of an examination to other authorized organizations is carried out only if it is impossible for customs experts to carry out such an examination.

An expert can be any person who has the necessary specialized knowledge in a given field.

Customs examination is assigned to goods, vehicles, as well as documents (customs, transport (shipping), commercial and others) necessary for customs operations, and means of their identification.

The declarant or other person with authority in relation to the goods is notified in writing of the appointment of a customs examination by the customs authority no later than the day following the day the decision was made to appoint such an examination.

Cases of grounds for refusal to conduct an examination are specified in paragraph 5 of Art. 138 of the Customs Code of the Customs Union, this list is not exhaustive in its content and can be supplemented in accordance with the legislation of the members of the Customs Union.

The refusal is made in writing, indicating the reasons for the refusal. All submitted materials are returned to the customs authority that appointed the customs examination.

Term carrying out the examination cannot exceed 20 working days from the date of acceptance of materials for production, unless a shorter period is established by the legislation of the member states of the Customs Union.

The period may be extended with the written permission of the head (deputy head) of the customs authority indicating the reasons, with the exception of cases when the release of goods is not carried out until the results of the examination are received. In this case, the examination must be carried out within a period not exceeding the period for release of goods, taking into account the extension of the specified period.

The product cannot be released until an expert's opinion is received.

The period for conducting the examination may be suspended. The period of suspension cannot exceed 10 working days. The list of grounds for suspension specified in the Labor Code of the Customs Union is also not exhaustive.

It is possible to distinguish different types of examinations.

Depending on the content - identification, commodity science, materials science, technology, forensics.

Depending on the number of experts - individual, commission, complex.

Depending on the place in the customs control process - primary, additional and re-examination.

The procedure for repeated customs examination in the customs territory of the Customs Union is determined by a decision of the Commission of the Customs Union1.

1 Decision of the Customs Union Commission dated May 20, 2010 No. 258 “On the procedure for conducting customs examination during customs control”

Taking samples and samples in most cases is part of the operations related to the examination, but can be considered as an independent method of customs control.

Customs experts may be present when taking samples and samples, if necessary. When taking samples and specimens, a report is drawn up in two copies, one of which is to be delivered to the declarant or a person with authority in relation to these goods. Samples and samples are taken in minimal quantities.

Samples and specimens may also be taken in the absence of the declarant or other person with authority in relation to the goods. In this case, the selection is carried out in the presence of 2 witnesses.

The customs examination ends with the drawing up of an expert’s conclusion.

In paragraph 1 of Art. 142 of the Customs Code of the Customs Union specifies the information that must be contained in the conclusion of a customs expert.

All materials and documents illustrating the conclusion are attached to it. If the examination was carried out by several experts, then the conclusion is signed by everyone and certified by the seal of the organization that conducted the customs examination.

Each page of the conclusion must be signed and stamped.

The conclusions are presented in the form of answers to the questions posed. The sequence of answers corresponds to the sequence of questions.

The conclusion is drawn up in writing in 2 copies. One remains with the organization that conducted the examination, and the second is sent to the customs authority, at whose request the customs examination was carried out.

Detention of goods– procedure for the seizure and storage of goods and documents by customs authorities due to the failure of the declarant or a person with authority in relation to these goods to take timely measures in relation to these goods, their failure to comply with their obligations to perform certain actions, their commission of an administrative offense or crimes.

The Customs Code does not contain a legal definition of detention; this definition can be formulated based on an analysis of the norms associated with this method of customs control.

The purposes of detention of goods are to identify and suppress administrative offenses and crimes, as well as make decisions regarding such goods transported in violation of customs legislation by customs officials.

Detention of goods can be carried out:

– in case of non-compliance with prohibitions and restrictions when moving goods across the customs border;

– in case of failure to comply with the period for temporary storage of goods, the deadline for filing a customs declaration, or in case of revocation of a customs declaration;

– upon the occurrence of consequences of seizure (arrest) of goods placed under the customs procedure;

– if the terms and conditions for storing goods in a customs warehouse are not observed;

– upon completion of the customs procedure for duty-free trade;

– in other cases provided for by customs legislation.

Customs officials detain goods that are not the subject of administrative offenses or crimes. In these cases, the seizure will be regulated by the norms of the Code of Criminal Procedure of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. In case of detention of goods, a protocol is drawn up in the form determined by the Commission of the Customs Union. A copy is handed over to the carrier, the owner of the temporary storage warehouse and another person in whose possession the detained goods are located. Detained goods are stored in temporary storage warehouses or other places determined by customs authorities. The costs of detaining goods are borne by the persons to whom the goods are actually returned.

If the goods are not in demand, or if it is impossible to transfer them to the declarant, the customs authority transfers the detained goods for sale according to the acceptance certificate - transfer to the authorized body.

The specified body accepts goods from the customs authority for accounting, evaluation and disposal no later than 10 working days after receiving the notification. Sales of goods are carried out at market prices. The goods are disposed of as quickly as possible, but no later than 3 months from the date of drawing up the acceptance and transfer certificate. The implementation period may be extended, but not more than 2 months.

The customs authority notifies the declarant or the owner of the goods in writing no later than 15 days before the expiration of the storage period for goods. And if the owner is a foreign person, or if there is no information about the owner of the goods, then the person who had the goods at the time of detention.

The customs authority also draws up a report on the expiration of the storage period for the goods no later than the day following the day of expiration. This act is drawn up in 2 copies and sent by registered mail to the specified persons no later than 3 working days.

The shelf life of detained goods is determined to be one month, and for perishable goods - within 24 hours. Goods prohibited for import into or export from the customs territory are stored for 3 days. Storage periods begin to be calculated from the date of detention of such goods.

The return of detained goods and documents is made to the declarants. When returning detained documents, a report is drawn up in two copies. The second copy of the act is handed to the person to whom the goods and documents are returned. In cases where no declaration was made, such goods are returned to the owner. And in cases where the owner is a foreign person, or if the customs authority does not know about the owner of the detained goods, such goods are returned to the person in whose possession they were at the time of detention.

Goods, the costs of storage and sale of which exceed their value, are subject to destruction.

The costs of destruction are reimbursed by the declarant, as well as by other persons, and in their absence - from the state budget.

When selling goods, from the amounts received, first of all, amounts in the amount of customs duties and taxes that would be payable if these goods were placed under the customs procedure of release for domestic consumption are withheld, and secondly - costs of transportation, storage and sale goods.

The amounts received are returned to the declarant or the owner of the goods within three months from the day following the day of receipt of funds from the sale.

Customs authorities must notify the above-mentioned persons about the presence of refundable amounts received from the sale of goods.

Customs controls

The use of the same forms of customs control may have its own characteristics depending on the chosen tactics or methods of customs control.

In turn, the concept of “method of customs control” is closely related to the concept of “means of customs control”.

The following are considered as means of customs control:

– technical means of customs control;

– sea (river) and aircraft of customs authorities;

– information resources of customs authorities;

- search dogs.

Technical means of customs control include:

– inspection X-ray television equipment;

– fluoroscopic inspection equipment;

– inspection and inspection complexes;

– technical search tools;

– inspection tool;

– technical means of identification;

– chemical means of identification;

– technical means of customs control of fissile and radioactive materials,

– as well as a number of other technical means.

All technical means used by customs authorities must be safe for human life and health.

The use of technical means of customs control is aimed at visualizing the contents of large-sized objects and identifying the materials, objects and substances located there with the materials, objects and substances specified in customs declarations and shipping documents, however, to successfully solve this kind of problems it is necessary to solve a number of sufficient complex organizational, operational and technical problems.

It is known that information about the internal structure of objects and their contents can be obtained using the method of introscopy (“candling”).

The technical implementation of introscopy of fairly thick and dense objects (containers, trailers, large volumes of cargo) requires the use of powerful sources of X-ray and gamma radiation (energy up to 10 MeV or more), capable of “transparenting” more than 400 millimeters of steel.

Such generators have long been successfully used in other branches of science and technology, however, with such radiation energies, traditional methods of ensuring radiation safety of personnel serving the complex, used on less powerful customs X-ray machines, could not be suitable here, since lead protection at the same time loses its effectiveness.

“Screening” in the conditions of actually existing customs control technologies (in warehouses, container yards and parking lots, where maintenance and technical personnel are almost constantly present) should be carried out in specially constructed buildings made in the so-called “heavy” walls, ensuring compliance with existing sanitary standards. In addition, the designs of highly sensitive receiving detector systems that effectively record both powerful flows of ionizing radiation and at the same time have sufficient sensitivity to obtain high-quality shadow pictures, as well as techniques and methods for computer video image processing must also be technically developed. . It is also necessary to ensure the possibility of transporting containers and vehicles to move them in the process of “candling” past sources of ionizing radiation in the form of a conveyor belt or a damaged platform.

For visual observation of the operational situation in customs control zones, radar-type equipment is used, combined with technical means of optical or optical-television surveillance, operating in conditions of any visibility; optical long-range equipment (mono- and stereo scopes, marine binoculars, infrared observation devices, television cameras, etc.).

As technical means of search, customs authorities use:

– metal detectors – electronic devices that allow you to detect objects made of ferrous and non-ferrous metals (there are portable, portable and stationary);

– inspection mirrors – telescopic holders with a set of replaceable mirrors of different shapes and sizes; used with hand-held lighting devices for inspecting the undersides of vehicles, as well as with special hooks for removing objects from hard-to-reach places in vehicles;

– inspection probes – specially hardened metal rods of different diameters and lengths, available with a specially shaped hole for taking samples from the inserts of pierced objects (soft and cardboard packaging, seats in vehicles, bulk cargo, etc.);

– endoscopes are optical devices designed for inspection of hard-to-reach places in vehicles and containers filled with various, including aggressive, liquids. They are manufactured in three modifications: “rigid” (baroscopes) - metal tubes of different lengths and diameters with a built-in system of optical rigidly fixed elements and a fiber-optic backlight bundle, “flexible” (flescopes), made on the basis of fiber optics and having two fiber-optic bundles - for illumination and direct viewing of the space under study, as well as “semi-rigid” ones.

As for checking customs documents and customs security attributes, customs authorities can use optical magnifying devices (illuminated magnifying glasses, microscopes) ultraviolet and infrared.

The use of technical means during customs control makes it possible to examine hard-to-reach areas of goods and vehicles, and also leads to a significant reduction in labor costs and customs control time.

Legal basis of the risk management system

The principle of using a risk management system for the first time in Russian practice was legislatively established by the Customs Code of the Russian Federation in 2003, the legal basis for its application was significantly expanded in the Customs Code of the Customs Union (Chapter 18). Most of the acts regulating the functioning of the risk management system (hereinafter referred to as the RMS) are documents for official use, and therefore the majority of publicly available documents that contain rules aimed at regulating the RMS are programmatic and conceptual in nature.

1 For example, order of the State Customs Committee of the Russian Federation dated September 26, 2003 No. 1069 “On approval of the Concept of the risk management system in the customs service of the Russian Federation.”

The organization and conduct of customs control based on a risk management system is in accordance with international practice and, in particular, the Kyoto Convention, which states: “Risk management is the main basic principle of modern methods of customs control.”

Under risk from the perspective of organizing customs control is understood the degree of likelihood of non-compliance with customs legislation. This definition and other basic concepts of the RMS are contained in Article 127 of the Customs Code of the Customs Union (a complete list of terminology that must be memorized is in a separate section of the textbook).

The essence of the risk management system is as follows:

– customs control is limited to the minimum necessary to ensure compliance with customs legislation;

– when choosing forms of customs control, customs authorities are guided by those formed within the framework of the RMS risk profiles. The risk profile is based on risk indicators– certain criteria with predetermined parameters, deviation from which or compliance with which allows the selection of an object of control. Such criteria may include the price of the product, the nature of its movement, the type of transport, the country of origin and many others;

– the customs service applies the method risk analysis to determine the persons and goods, including vehicles, to be inspected and the extent of such inspection. Based on this method, risk profiles are formed;

– essential for the application of RMS is the division of goods into risk goods and cover goods. Risk goods– goods moved across the customs border for which risks have been identified or there are potential risks. Cover goods– goods that with a reasonable degree of probability can be declared instead of risk goods;

– the formation of risk profiles is influenced by the decisions of the Commission of the Customs Union, which may indicate mandatory development by the member states of the Customs Union risk areas.

It is obvious that the legal regulation of methods, forms of customs control, and the procedure for customs control in general plays an important role in the mechanism for identifying administrative offenses within the competence of customs authorities.

In order to increase the efficiency of activities carried out by customs officials during customs control, the Federal Customs Service, Regional Customs Directorates and Customs Offices can also issue relevant regulations regulating the organization of the work of customs authorities to identify violations of the legislation of the Customs Union and the Russian Federation when carrying out foreign economic activity in certain cases. For example, the order of the Federal Customs Service dated 02/05/2009 No. 125 “On organizing work to identify violations of the currency legislation of the Russian Federation and acts of currency regulation authorities when carrying out foreign economic activity” approved the procedure for organizing the work of customs authorities when implementing currency control.

According to the provisions of this order, the heads of regional customs departments, customs houses and customs posts must ensure:

1) identification during customs clearance and customs control of goods and vehicles moved across the customs border of the Russian Federation, illegal currency transactions, as well as signs of violations by residents of the currency legislation of the Russian Federation and regulatory legal acts of currency regulatory authorities regulations (hereinafter referred to as currency legislation) in relation to currency transactions, which, in accordance with the terms of agreements (contracts), must be completed before the day of filing the customs declaration, including violations of the established rules for issuing transaction passports, and sending them to the currency control department of the relevant customs within three working days from the date of discovery of information about alleged violations of currency legislation to carry out an inspection in the established order, and if the state registration of a participant in foreign economic activity (hereinafter referred to as a participant in foreign economic activity) was carried out in the region of activity of another customs authority, – to the Department of Trade Restrictions, Currency and Export Controls in the manner prescribed by this order;

2) organization of inspections of compliance with currency legislation by foreign trade participants whose state registration was carried out in the region of activity of the customs authority (hereinafter referred to as the inspection), by currency control units, as well as by subordinate customs posts, on the basis of:

a) monthly inspection plans formed on the basis of information about alleged violations of currency legislation by foreign trade participants (hereinafter referred to as monthly plans) in the manner prescribed by this order;

b) information on alleged violations of currency legislation identified during customs clearance and customs control, as well as information on possible violations of currency legislation received from structural divisions of a given customs authority, tax and other regulatory authorities;

c) instructions from the Federal Customs Service of Russia to conduct inspections of currency legislation, formed in accordance with subparagraph 2 of paragraph 6 of this Order (hereinafter referred to as the instruction of the Federal Customs Service of Russia);

3) carrying out inspections of compliance by foreign trade participants with currency legislation during:

a) deadlines ensuring the timely submission of relevant documents to the currency control body in the manner established by this order, and its consideration of initiated cases of administrative offenses, liability for which is established by Article 15.25 of the Code of Administrative Offenses of the Russian Federation, before the expiration of the statute of limitations for bringing to responsibility, established by Article 4.5 of the Code of the Russian Federation on Administrative Offenses; b) two months from the date of receipt of the instruction of the Federal Customs Service of Russia (except for cases when the instruction of the Federal Customs Service of Russia provides for a different period for conducting inspections), as well as from the date of receipt of information about possible violations of currency legislation from tax and other regulatory authorities. The period for conducting inspections on instructions from the Federal Customs Service of Russia, as well as on information received from tax and other regulatory authorities, may be extended by the Department of Trade Restrictions, Currency and Export Controls, taking into account the statute of limitations for bringing to administrative responsibility established by Article 4.5 of the Code of Administrative Offenses of the Russian Federation , and the statute of limitations for criminal prosecution established by paragraph 1 of Article 78 of the Criminal Code of the Russian Federation, on the basis of a petition from the customs authority sent to the Federal Customs Service of Russia in the form of an electronic copy via telecommunication channels in the manner determined by the Office of Trade Restrictions , currency and export control, with delivery on paper no later than 10 working days before the expiration of the inspection;

4) sending duly certified copies of documents on alleged violations of currency legislation by participants in foreign trade activities, the state registration of which was carried out outside the region of activity of the customs authority, within three working days from the date of their detection to the Department of Trade Restrictions, Currency and Export Control; 5) initiation by authorized persons of cases of administrative offenses in the event of discovery of sufficient data indicating the presence of an administrative offense event, liability for which is established by Article 15.25 of the Code of Administrative Offenses of the Russian Federation;

6) sending the protocol and other materials of the case on an administrative offense, responsibility for which is established by Article 15.25 of the Code of Administrative Offenses of the Russian Federation, within three days from the date of drawing up the protocol on the administrative offense to the territorial department of the Federal Service for Financial and Budgetary Supervision;

7) sending information about the results of inspections to the Department of Trade Restrictions, Currency and Export Control via telecommunication channels using the CPS “Agent VK” within 10 working days from the date of their completion (unless otherwise provided by the order of the Federal Customs Service of Russia ).

Order of the Central Customs Administration dated July 13, 2012 No. 554 “On approval of the Standard Technological Scheme for the interaction of department customs departments when identifying facts of non-delivery of goods and vehicles, investigation of cases of administrative offenses initiated on facts of non-delivery of goods and vehicles under customs control, monitoring the execution of decisions and collection of due customs duties and penalties”, the corresponding standard Technological scheme has been approved.

This Standard technological scheme was developed in accordance with the Agreement between the Government of the Republic of Belarus, the Government of the Republic of Kazakhstan, the Government of the Russian Federation dated 05.21.2010 “On mutual administrative assistance of customs authorities of the member states of the Customs Union”, the Customs Code of the Customs Union, the Procedure for the actions of customs authorities of states - members of the Customs Union in the absence of information about the delivery of goods transported in accordance with the customs procedure of customs transit, or receipt of information about their non-delivery, approved on September 21, 2011 by the heads of the customs services of the Russian Federation, the Republic of Belarus and the Republic of Kazakhstan, and other normative -legal acts.

A standard technological scheme was developed taking into account the established practice of interaction between customs departments when identifying facts of non-delivery of goods and investigating cases of administrative offenses initiated on these facts.

Thus, according to this technological scheme, in order to identify cases of lack of information about the completion of the customs procedure of customs transit, the customs transit control department (hereinafter referred to as OKTT) of customs carries out a daily analysis of databases of the unified automated information system (hereinafter referred to as UAIS) of customs authorities through a complex software (hereinafter - KPS) “Transit operations”.

In the absence of information on the completion of the customs procedure for customs transit of goods transported between the customs authorities of the member states of the Customs Union, the OKTT customs authorities are guided by the Procedure for actions of the customs authorities of the member states of the Customs Union in the absence of information on the delivery of goods transported in accordance with customs procedure of customs transit, or receiving information about their non-delivery, sent by letter of the Federal Customs Service of Russia dated October 3, 2011 N 04-27/47658.

In the absence of information about the completion of the customs procedure for the customs transit of goods, the OCTT of the customs office of departure, in the region of activity of which the goods are placed under the customs procedure of customs transit, including again, after their partial unloading, together with the OCTT of the customs office of destination organize an inspection (collection and analysis of information) with the participation of structural units carrying out operational investigative activities, customs offices of departure and destination in order to establish sufficient data indicating the presence of an accident event, expressed in non-delivery, loss of goods.

The inspection begins on the next working day after the expiration of the established period for the customs transit procedure and is carried out by the structural divisions of the customs offices of departure and destination for no more than five days (except for cases of non-delivery of goods transported by rail).

As part of the OCTT check at the customs office of departure:

– in the case of moving goods using a TIR carnet, informs the Association of International Road Carriers (hereinafter referred to as ASMAP) about the lack of information about the delivery of goods indicating the TIR carnet number, the name of the carrier, the customs authority of destination, the period of customs transit of goods and requests information about the fact of issuance TIR Carnet to the carrier and its return;

– informs the carrier about the absence of information about the delivery of goods, indicating the number of the transit declaration, the number of the vehicle, the customs authority of destination, the period of the customs procedure for customs transit of goods and requests information about the circumstances of the transportation of goods, the place of their delivery or about non-delivery, issuance (transfer) without authorization -responsibility of the customs authority, loss;

– sends by memo to the operational investigation department (hereinafter referred to as ORO) of the customs office of departure information about the possible non-delivery of goods to the customs authority of destination and copies of customs, transport and commercial documents used to transport the goods;

– informs the OCTT of the customs office of destination about the start of an inspection based on the lack of information about the delivery of goods.

Informing ASMAP and the carrier, as well as requesting information, is carried out on paper and through operational communication channels.

As part of the OCTT check at the customs office of destination:

– sends by memo to the ORO of the customs office of destination information about the possible non-delivery of goods and information contained in the electronic copy of the transit declaration, printed from the CPS “Transit Operations”;

– sends to customs posts subordinate to the customs office of destination a request for the possible completion of customs transit and customs clearance of goods.

The customs post, in the region of operation of which the place of delivery of goods is located, requests from the owner of the temporary storage warehouse indicated in the transport documents information about the existence of a concluded agreement for the provision of warehouse services with the recipient (carrier), as well as about the delivery or non-delivery of goods.

Requests for information from customs posts and the owner of a temporary storage warehouse are carried out on paper and through operational communication channels.

The data received by the customs post is sent to the OKTT customs office of destination on paper.

In the case of movement of goods by rail, OKTT customs offices of departure and destination, additionally with the help of the CPS “Transit Operations”, send a request to search for undelivered goods to the Main Computer Center of JSC Russian Railways in the manner established by the legal acts of the Federal Customs Service of Russia.

The OCTT of the customs office of destination, no later than 5 working days after the start of verification activities, informs the OCTT of the customs office of departure about the results of verification activities or about the initiation of an administrative offense case regarding non-delivery of goods.

OCTT of the customs office of departure, taking into account the information received, decides on the initiation of a case of an administrative offense based on non-delivery of goods.

Order of the Central Customs Administration dated July 13, 2012 No. 554 also regulates further actions of the registration and registration department (hereinafter referred to as the URO), the administrative investigation department (hereinafter referred to as the AAR), divisions of commodity nomenclature and origin of goods, the customs payments department, customs posts and others.

Note that when customs officials authorized to draw up protocols on administrative offenses directly discover data indicating the presence of an administrative offense event, officials often experience difficulties associated with the legal unsettlement of various issues and the non-standard nature of the situations that arise. Taking this into account, in pursuance of paragraph 3 of the Decision of the Board of the Federal Customs Service of Russia dated 01.07.2005 “On current problems of judicial practice in disputes in the field of customs legal relations”, in order to exclude facts of making unlawful decisions to initiate cases of administrative violations of the Federal Customs Service of Russia Methodological recommendations on the interaction of customs departments in identifying administrative offenses were sent to the customs authorities for use in practical activities. See: letter of the Federal Customs Service of Russia dated December 29, 2005 N 01-06/46772 “On sending methodological recommendations on the interaction of customs authorities when identifying administrative offenses.”

According to these methodological recommendations, for effective interaction between customs authorities when bringing persons to administrative responsibility, officials of administrative investigation units provide practical and methodological assistance to structural units on an ongoing basis on the issues of initiating cases of administrative offenses and carrying out administrative violations. ministerial proceedings.

In the event that officials of functional divisions of customs authorities detect a violation of customs legislation or legislation, control over compliance with which is entrusted to the customs authorities, when its legal assessment (qualification of the act and (or) the subject of the offense) does not cause difficulties, these persons an administrative violation case is immediately initiated.

When officials of functional divisions of customs authorities identify violations of customs legislation or legislation, control over compliance with which is entrusted to customs authorities, in the case where there are difficulties in determining the qualification of the act and (or) the subject of the administrative offense in accordance with the Code of Administrative Offenses of the Russian Federation, all materials with the necessary explanations are immediately transferred to the administrative investigation unit located at the location of the specified units or to the official of the administrative investigation unit assigned by the curator to this functional unit for examination to determine signs of an administrative offense. Materials can be transmitted by courier or using other available means of communication (for example, fax, e-mail) by memo or report.

An official of the administrative investigation unit studies the submitted materials and information and, based on the results, gives a legal assessment for the presence of signs of an administrative offense. If it is established that there is sufficient data indicating that an offense has been committed, an official of the administrative investigation unit initiates an administrative case. If, after studying the materials, an official of the administrative investigation unit determines that they do not contain sufficient data indicating the commission of an administrative offense, the submitted documents are returned to the functional unit with a reasoned conclusion about this.

If the collected materials and information about a possible offense are incomplete, the official of the administrative investigation unit in conclusion indicates the actions and activities that need to be carried out by the functional unit within its competence to collect the missing evidence.

After officials of the functional units of customs authorities authorized to draw up protocols on an administrative offense have collected the missing data and information, depending on the established circumstances, they repeat the above actions to initiate a case.

Administrative offenses that infringe on public order and public safety are listed in Chapter 20 of the Code of Administrative Offenses of the Russian Federation, which contains 32 articles.

In the activities of internal affairs bodies, the following administrative offenses are most often used:

Article 20.1. Petty hooliganism

Article 20.20. Consumption (drinking) of alcoholic beverages in prohibited places or consumption of narcotic drugs or psychotropic substances in public places.

Article 20.21. Appearing in public places while intoxicated.

Article 20.1. Petty hooliganism.

1. Petty hooliganism, that is, a violation of public order, expressing clear disrespect for society, accompanied by obscene language in public places, offensive harassment of citizens, as well as destruction or damage to someone else’s property, -

shall entail the imposition of an administrative fine in the amount of five hundred to one thousand rubles or administrative arrest for a term of up to fifteen days.

2. The same actions involving disobedience to the lawful demand of a government representative or other person performing duties to protect public order or suppress a violation of public order - shall entail the imposition of an administrative fine in the amount of one thousand to two thousand five hundred rubles or administrative arrest for a term of up to fifteen days.

The main feature of this offense is a violation of public order, expressing clear disrespect for society. Without this sign there can be no talk of hooliganism, including petty hooliganism.

Object public order stands for crime.

WITH objective side petty hooliganism is an action that violates public order and the peace of citizens. Such actions specified in the article are obscene language in public places, offensive harassment of citizens, destruction or damage to other people's property. The nature of these actions is obvious. Each of them can be considered as petty hooliganism if it violates public order and expresses clear disrespect for society. In other cases, the commission of these actions entails administrative liability when this is an independent offense, for example, it forms an offense under Art. 7.17 (destruction or damage to someone else’s property).

Hooliganism can disrupt public order in any sphere of life and activity of citizens: at work, at home, in cultural and educational institutions; anywhere people are - on the street, in the forest, etc.

Typically, petty hooliganism is committed in the immediate presence of people, because it is in such an environment that the offender is able to demonstrate his disrespect for society to a greater extent. However, for this offense to exist, the presence of a sign of publicity at the time of the commission of the offense is not necessary. For example, petty hooliganism will also occur in the case where a person wrote obscene inscriptions on a fence in the absence of people.

WITH subjective side petty hooliganism is characterized by intent, usually direct. But there may be cases where it was committed with indirect intent. An important element of the subjective side of petty hooliganism is the motive of satisfying individualistic needs, self-affirmation by ignoring the dignity of other people.

Subject petty hooliganism can be committed by a person who has reached 16 years of age.

Article 20.22. Being intoxicated by minors, consuming (drinking) alcohol and alcohol-containing products, or consuming narcotic drugs or psychotropic substances.

Intoxication of minors under the age of sixteen, or their consumption (drinking) of alcohol and alcohol-containing products, or their consumption of narcotic drugs or psychotropic substances without a doctor’s prescription, or other intoxicating substances -

shall entail the imposition of an administrative fine on parents or other legal representatives of minors in the amount of one thousand five hundred to two thousand rubles.

This article corresponds with Art. 5.35 of the Code (failure to fulfill or improper fulfillment by parents or other legal representatives of minors of duties for the maintenance, upbringing, training, protection of the rights and interests of minors).

Objects The offense in question is relations in the field of maintaining public order and public safety, as well as in ensuring the health, rights and interests of minors.

Objective side offenses is close to the objective side of administrative offenses provided for in Art. 20.20 and 20.21 of the Code of Administrative Offenses of the Russian Federation and is expressed in minors being in a state of intoxication, their consumption (drinking) of alcohol and alcohol-containing products, or their consumption of narcotic drugs or psychotropic substances.

Subjects the offense in question in accordance with the Family Code of the Russian Federation and Art. 25.3 of this Code are parents, adoptive parents, guardians or trustees of a minor .

Subjective side the composition of the offense under comment represents the guilt of the parents or other legal representatives of the minor in the form of direct or indirect intent. Moreover, this is not someone else’s fault, i.e. a minor, and the guilt and administrative responsibility of his parents or other legal representatives for failure to fulfill the duties assigned to them to exercise proper supervision over the behavior of minors, ensure the physical, mental, spiritual and moral development of their children, and prepare them for socially useful work.

Cases of administrative offenses provided for in the commented article are considered by commissions on the affairs of minors and the protection of their rights (Article 23.2).

Protocols on these offenses are drawn up by officials of the internal affairs bodies (clause 1, part 2, article 28.3), as well as officials of the authorities for control over the circulation of narcotic drugs and psychotropic substances (clause 83, part 2, article 28.3).

1) direct discovery by officials authorized to draw up protocols on administrative offenses of sufficient data indicating the existence of an administrative offense event;

2) materials received from law enforcement agencies, as well as from other state bodies, local government bodies, and public associations containing data indicating the existence of an administrative offense event;

3) messages and statements of individuals and legal entities, as well as messages in the media containing data indicating the existence of an administrative offense event (with the exception of administrative offenses provided for in Part 2 of Article 5.27 and Article 14.52 of this Code);

4) recording an administrative offense in the field of road traffic or an administrative offense in the field of landscaping, provided for by the law of a constituent entity of the Russian Federation, committed using a vehicle or by the owner or other holder of a land plot or other property, operating automatically with special technical means that have the functions photography and filming, video recording, or by means of photography and filming, video recording;

(see text in the previous edition)

5) confirmation of the data contained in the message or application of the owner (owner) of the vehicle that in the cases provided for in paragraph 4 of this part, the vehicle was in the possession or use of another person.

(see text in the previous edition)

1.1. The reasons for initiating cases of administrative offenses provided for, 14.13 and 14.23 of this Code are the reasons specified in paragraphs 1 and 3 of part 1 of this article, as well as statements of persons participating in the bankruptcy case and persons participating in the arbitration process on bankruptcy case, the management bodies of the debtor - a legal entity, a self-regulatory organization of insolvency practitioners, containing sufficient data indicating the presence of an administrative offense event.

(see text in the previous edition)

(see text in the previous edition)

1.2-1. The reason for initiating cases of administrative offenses provided for in Article 14.9.1 of this Code is the adoption by the commission of the antimonopoly body of a decision that establishes the fact of a violation of the procedure for the implementation by a federal executive body, a state government body of a constituent entity of the Russian Federation, a local government body or another performing the functions of these bodies a body or organization, an organization involved in the provision of state or municipal services, a procedure included in the exhaustive list of procedures in the relevant field of construction, approved by the Government of the Russian Federation.

1.2-2. The reason for initiating cases of administrative offenses provided for in Article 14.55.2 of this Code is the adoption by the commission of the federal executive body exercising the functions of state control (supervision) in the field of state defense procurement, a decision that establishes the fact of violation of the legislation of the Russian Federation in the field of state defense order.

1.3. The reason for initiating cases of administrative offenses provided for in 8.37 of this Code is an act on the presence of signs of an administrative offense or crime related to violation of the legislation of the Russian Federation in the field of hunting and conservation of hunting resources, which is drawn up by a production hunting inspector in accordance with the legislation of the Russian Federation.

2. The materials, messages, statements specified in parts 1 and 1.1 of this article are subject to consideration by officials authorized to draw up protocols on administrative offenses.

(see text in the previous edition)

3. A case of an administrative offense may be initiated by an official authorized to draw up protocols on administrative offenses only if there is at least one of the reasons provided for in parts 1, 1.1 and 1.3 of this article, and there is sufficient data indicating the existence of an administrative offense event.

(see text in the previous edition)

4. A case of an administrative offense is considered initiated from the moment:

1) drawing up a protocol of inspection of the place where the administrative offense was committed;

2) drawing up the first protocol on the application of measures to ensure proceedings in a case of an administrative offense, provided for in Article 27.1 of this Code;

3) drawing up a protocol on an administrative offense or the prosecutor issuing a resolution to initiate a case on an administrative offense;

4) issuing a ruling to initiate a case of an administrative offense if it is necessary to conduct an administrative investigation provided for