Regarding: the procedure of appealing the decisions, actions and inaction of customs authorities (their officials) under Chapter 4 of Section I of the new version of the Customs Code of Ukraine.
The new version of the Customs Code of Ukraine (hereinafter – the “Customs Code”) comes into force on June 1, 2012. KM Partners offers a series of newsletters devoted to changes that may have, above all, significant negative consequences for business as well as innovations that may facilitate relations with customs authorities.
This newsletter reviews the procedure of appealing the decisions, actions and inaction of customs authorities (their officials), stipulated in Chapter 4 of Section I of the Customs Code. We are to mention that this procedure is not applied to appealing resolutions on administrative violation and tax notifications-decisions of customs authorities, which, in turn, will be covered in another newsletter.
Special attention is paid to the issue of pre-trial appealing the decisions, actions and inaction in the Customs Code while judicial procedure is left for special legislation (the law) on the subject matter (Article 29 of the Customs Code).
The key points of appealing the decisions in accordance with Chapter 4 of Section I of the Customs Code are:
1. Enhanced, compared with the previous version of the Code, list of decisions, actions and inaction that may be subject for appealing, in particular, such list includes not only particular decision of customs authorities (their officials) on the custom issues, but also the decisions which satisfy or refuse to satisfy the complaints of legal/ natural persons (part 2 of Article 24 of the Customs Code).
2. The procedure of appealing, stipulated in chapter 4 of Section I of the Customs Code in the system analysis of Articles 24, 52, 55, 69.256, 357, 512 of the Customs Code, inter alia, covers:
- decision of the customs authority on adjustment of the customs value of goods or inaction on determining the customs value of goods being evaluated within the prescribed terms;
- decision on classification of goods for customs purposes (in accordance with codes Ukrainian Classification of the Goods of Foreign Economic Activity);
- decision on refusal from customs clearance and inaction, that is not making such decision within the prescribed term;
- decision on temporary seizure of goods that are needed as evidence within cases of violation of customs regulations;
- Other decisions
3. Decisions (actions, inaction) may be appealed to higher authorities and officials. Higher are considered as:
- for customs officials – heads of the customs authorities;
- for custom posts – Customs;
- for customs of the specialized customs authorities, customs organizations – the State Customs Service of Ukraine;
- for the State Customs Service of Ukraine – the Ministry of Finance of Ukraine.
Defects of the legal technique of the Customs Code introduce ambiguity in the definition of the authority, to which the claim on the decision of the customs authority (but not the decision of customs officials) shall be submitted (although under the Customs Code – to higher authorities).
4. Requirements to the form and content of the complaints, the terms of their submission, procedure and terms for their consideration, as well as responsibility for illegal actions related to submission and consideration of the complaints are determined by the Law of Ukraine “On citizens’ appeals” (the same requirements apply, as a general rule, to the legal entities as well).
5. Complaint on the decision, action or inaction of the customs authority (its official) shall be considered within not more than one month from the date of its receiving with possible extension of up to forty five days (Article 20 of the Law of Ukraine “On citizens’ appeals“). Such terms, upon the written request of the complainant, may be reduced.
6. Complaint on the decision, action and inaction is to be submitted within one year from the date of its adoption (commission), but not later than one month since familiarization with such decision (Article 17 of the Law of Ukraine “On citizens’ appeals“). Violation of the mentioned terms results in termination of complaint consideration (Article 8 of the Law of Ukraine “On citizens’ appeals“).
7. Submission of the complaint does not result in suspension of the appealed decision. In accordance with para. 7 of Article 25 of the Customs Code, the authority which considers the complaint may suspend the appealed decision, however, such suspension is not mandatory, it is only the right of the customs authority.
8. Violation of the procedure of the complaint consideration leads to civil, administrative or criminal liability provide by the Ukrainian law for the customs authority (its official). That is, the customs authority does not incur any particular liability for violation of the procedure of complaint consideration.
Efficiency of foreseen by the Customs Code appeal procedure is still very low, since submission of the complaint, regardless of the circumstances of the case, does not oblige the customs authorities to suspend the appealed decision and violation of the procedure of the complaint consideration (or even denial of its consideration), making unreasonable decisions under its results does not lead to satisfaction of such complaint. Moreover, the effectiveness of the administrative appeal is reduced because of defects of legal technique which were made during preparation of relevant articles of Custom Code.
Therefore, currently, protection of individual rights through the procedure of pre-trial decisions, actions and inaction of customs authorities (their officials) is just the formal procedure and does not guarantee adequate protection of individual rights.
The above commentary presents the general statement for information purposes only and as such may not be practically used in specific cases without professional advice.
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