Passenger checkpoint log of the automated customs clearance system «Іnspector» as an official document, subject of a criminal offense under Article 366 of the Criminal Code of Ukraine

Abstract

The article is devoted to the issue of establishing whether the passenger checkpoint log of the automated customs clearance system “Inspector” has the features of an official document provided for in the note to Article 358 of the Criminal Code of Ukraine. The author identifies two main approaches which are currently used in judicial practice, namely, recognition of such an electronic log as an official document and establishment of the absence of signs of an official document in case of entering deliberately false information into the electronic log of a passenger customs checkpoint. It is concluded that the electronic log of a passenger customs checkpoint is not characterized by the features of an official document, in particular, such a feature as drawing up, issuance or certification in the form and details prescribed by law. Based on the analysis of the regulatory legislation in the customs sphere, it is established that the electronic log of a passenger customs checkpoint is a functional program module of the electronic database - the Unified Automated Customs Clearance System. According to Regulation No. 1341, the data of the electronic log of the passenger customs checkpoint may be used to generate official documents in an automatic mode, in particular by transferring the relevant data (including the marks of the customs authority) to customs declarations, which means that this electronic log is not an official document in itself. It is determined that the regulatory legislation does not classify the electronic log of the passenger customs checkpoint as an official document, but only indicates that it is a functional software module. Taking into account the above, the final conclusion is that, subject to confirmation of all the circumstances of the act, which were established by the courts of first instance and appeal, the qualification of the accused’s actions under Article 366 of the Criminal Code of Ukraine is an incorrect application of the law of Ukraine on criminal liability.