Art. 194 of the Criminal Code of the Russian Federation in a new edition with Comments for 2021, punishment and court sentences under the article

1. Evasion of customs duties, special, anti-dumping and (or) countervailing duties levied on an organization or individual, committed on a large scale -

shall be punishable by a fine in the amount of one hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by compulsory labor for a term of up to four hundred eighty hours, or by forced labor for a term of up to two years, or by imprisonment freedom for the same period.

2. The same act committed:

a) by a group of persons by prior conspiracy;

b) has become invalid;

c) has become invalid;

d) on an especially large scale, -

shall be punishable by a fine in the amount of three hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of two to three years, or by forced labor for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or without it.

3. Acts provided for in parts one or two of this article, committed:

a) by an official using his official position;

b) with the use of violence against a person exercising customs or border control -

shall be punishable by imprisonment for a term of five to ten years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, and with or without restriction of freedom for a term of up to one and a half years.

4. Acts provided for in parts one, two or three of this article, committed by an organized group, -

shall be punishable by imprisonment for a term of seven to twelve years with or without a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to five years, and with or without restriction of freedom for a term of up to two years.

Note. Evasion from paying customs duties, special, anti-dumping and (or) countervailing duties is recognized as committed on a large scale if the amount of unpaid customs duties, special, anti-dumping and (or) countervailing duties for goods moved across the customs border of the Eurasian Economic Union, including in one or more consignments, exceeds two million rubles, and in a particularly large amount - six million rubles.

Commentary to Art. 194 of the Criminal Code of the Russian Federation

1. Types of customs payments are established in Art. 70 Labor Code of the Customs Union (Article 46 Labor Code of the EAEU). The concepts of each type of payment are disclosed both in the Customs Code of the Customs Union (EAEU Labor Code) and in the Tax Code, in particular, in Chapter. 21 and 22 Tax Code, section. 2 Labor Code of the Customs Union (Section II of the Labor Code of the EAEU). It also defines the grounds for payment, terms, payers, and payment procedure. In particular, in Art. 80 and 81 of the Customs Code of the Customs Union (Articles 54 - 56 of the EAEU Labor Code) indicate the emergence and termination of the obligation to pay customs duties and taxes (value added tax (VAT), excise taxes), and there are cases when customs duties and taxes are not paid.

2. Evasion from paying customs duties consists of failure to fulfill the obligations established by law to pay these payments, i.e. in legal inaction.

3. In theory and in practice, the objective side of the crime sometimes mistakenly also includes actions consisting of a statement in the customs declaration and other documents necessary for customs purposes, false information about the customs regime, customs value, country of origin of goods, etc. This understanding of evasion reproduces the explanation of the Plenum of the RF Armed Forces regarding the content of tax evasion. However, evasion of mandatory payments in Art. 198 and 199 of the Criminal Code are understood by the legislator differently from the article under comment. “Tax” articles provide for liability for evasion committed through certain actions or additional, i.e. that occurred in addition to the actual failure to fulfill the obligation, inaction (failure to submit a declaration and other documents). There are no such reservations in the commented article.

4. The act provided for in the commented article is completed from the moment the deadline expires, before the expiration of which the person was obliged to pay customs duties.

5. If the deception of customs authorities is not aimed at non-payment of payments, but at misleading them in order to return supposedly legally paid payments, then the deed constitutes fraud (Article 159 of the Criminal Code of the Russian Federation).

6. Evasion of customs duties is criminal only if this act is committed on a large scale, which is defined in the note. to the commented article. This amount can be formed due to non-payment of one or several types of payments. In the latter case, the summation of unpaid payments is possible only when all acts of failure to fulfill the corresponding obligation were covered by a single intent and thereby formed a continuing crime. See Instructions on the procedure for filling out a declaration of goods, approved. by decision of the Customs Union Commission dated May 20, 2010 N 257. ——————————— Official website of the Eurasian Economic Union https://www.eaeunion.org/, 11/17/2016.

7. The subject of the crime is the person who is entrusted with the obligation to pay customs duties. According to Art. 79 of the Customs Code of the Customs Union (Article 50 of the EAEU Labor Code), the person responsible for the payment of customs duties and taxes is the declarant or other persons who have an obligation to pay customs duties and taxes. The concept of a declarant is contained in paragraph 1 of Art. 4 of the Customs Code of the Customs Union (Clause 1 of Article 2 of the EAEU Labor Code), as well as the concept of a customs representative. If the declaration is made by a customs representative, then he is responsible for paying customs duties and taxes.

8. Subjective side - direct intent. When a person, having knowingly failed to fulfill the relevant obligation, does not know exactly to what extent he will be able to evade paying customs duties, the act is recognized as having been committed with direct, unspecified intent. In this case, the act is qualified depending on the consequences that occurred, and therefore can be recognized as non-criminal if, for example, the amount of unpaid payments did not exceed the amount established in criminal law. However, if it is established that the person’s intent was aimed at evading on a large scale, but in fact he managed to evade on a smaller scale, the act is qualified as an attempted evasion of customs duties on a large scale (Part 3 of Article 30, Part 1 of the commented articles).

9. On the concept of committing a crime by a group of persons by prior conspiracy, see the commentary to Art. 35. On the rules for qualifying crimes based on these criteria, the subject of which is a special one, see the commentary to Art. 174.

10. The sign of the commission of a crime by an official using his official position provided for in paragraph “a” of part 3 of the commented article is revealed primarily by referring to the concept of an official (note to Article 285 of the Criminal Code of the Russian Federation). Since the elements of evasion from paying customs duties can only be carried out by a special subject: an individual who is entrusted with the corresponding duty, or an authorized employee of a legal entity who is also obliged to fulfill the obligation to pay customs duties, then the sign of abuse of official position may be contained in the act of an official of the named in Art. 285 of the Criminal Code of bodies or institutions that are legal entities entrusted with the obligation to pay customs duties. At the same time, a crime can also be committed as part of an organized group, which may include other officials, including officials of bodies exercising customs or border control; what they did will be qualified as co-perpetrator, i.e. without reference to Art. 33 of the Criminal Code of the Russian Federation. The use by officials of their official position when committing a crime as part of an organized group requires the imputation of this attribute not only to these individuals, but also to all members of the group, if these circumstances were covered by their intent, since this attribute characterizes the increased social danger of the act of each member of the group.

The sign of committing a crime with the use of violence against a person exercising customs or border control provided for in paragraph “b” of part 3 of the commented article can only be imputed in the case when these persons fulfill their duties, exercise rights related specifically to control functions and they act lawfully. The use of violence in response to, say, an illegal demand on the part of these persons cannot be considered as a sign of the act in question, but contains signs of a crime against the person. For persons exercising customs or border control and their powers, see Art. 95 and others. Labor Code of the Customs Union (Articles 310, 351, 354, 355 Labor Code of the EAEU), Art. 11 of the Law on the State Border, as well as relevant by-laws - Post. Government of the Russian Federation dated 02.02.2005 N 50 “On the procedure for using means and methods of control when carrying out the passage of persons, vehicles, cargo, goods and animals across the State Border of the Russian Federation”, dated 20.11.2008 N 872 “On approval of the Rules for the implementation of control during passage persons, vehicles, cargo, goods and animals across the State Border of the Russian Federation,” etc. On the concept of the use of violence, see the commentary to Art. 178.

11. On the concept of an organized group, see the commentary to Art. 35. An organized group may also include persons who do not meet the criteria of a special entity. In this case, the qualification of their actions under Art. 33 of the Criminal Code is not required.

12. If a customs official facilitated the commission of the crime under discussion, without being a co-perpetrator as part of an organized group, then his actions should be qualified as complicity in the commission of a crime under the commented article, in conjunction with the articles on liability for crimes against the interests of the public service and service in local government bodies (Article 285 or 286 of the Criminal Code of the Russian Federation).

Article 194. Evasion of customs duties levied on an organization or individual

1. Evasion from payment of customs duties levied on an organization or individual, committed on a large scale, -