Judgment of the Constitutional Court of 26 November 2012 № 28-П on the review of constitutionality of Section 1 of Article 16.2 and Section 2 of Article 27.11 of the Administrative Offences Code of the Russian Federation in connection with the complaint of the Limited Liability Company “Avesta”

Legal issue: whether the constitutional rights of the applicant (a legal entity) were violated by the rules of legislation, which make the amount of fine for the failure to declare a commodity at customs dependent upon such insufficiently clear notion as market value of this commodity in the Russian Federation?

Ratio decidendi: the Court took into account its Decree of 13 July 2010 № 15-П, in which the same issue arose with regard to natural persons, importing goods for their own consumption. In that case the Court deemed it impossible to determine the amount of sanction by way of market price, and rules that customs value (an acquisition price) ought to be used instead. However, in the present decree, which dealt with legal entities, the Court took a different view: the federal legislator has the right to establish a higher degree of liability for legal entities, than for natural persons, while a legal entity must have an idea of marker value of the goods which it transfers across the border, and equally should be aware of the liability for non-declaring or improper declaring of goods at their importation into the customs territory of Russia, having recourse, when necessary, to the assistance of experts. Therefore, the contested provisions do not contradict the Constitution.

Dissenting opinion:
  • The rules of calculation of administrative fines must apply in equal fashion to both legal and natural persons, as long as the former are treated as nothing more than an association of the latter.

  • The criterion of the purpose of importation (either for personal or commercial use) may not justify the difference in application of respective sanctions, while market price may vary depending on the method of calculation, which creates uncertainty and violates the principles of justice and equality.

  • Personal consumption is not a higher constitutional value as compared with the protection of entrepreneurship, while business risks may be caused by unpredictability of market fluctuations, and not by vagueness of legislation and arbitrary application of law.

Document (463.13 Kb)
Subject area:
Public Law administrative liability
Civil Law entrepreneurship
Economic activities, finances imports