Proportionality and non-oneness of confiscation for customs violations

Abstract

The article argues that the legal basis for confiscation, contrary to general principles of law, international recommendations on customs administration and the experience of the most developed countries in the relevant part, does not ensure the proportionality of this administrative penalty and the possibility of its replacement on conditions both acceptable to the offender and being in the best interests of the state. According to the author, given the scale and irreversibility of the consequences of confiscation of the property of the offender, unconditional and unalterable imposition of this administrative penalty for customs rules violations, regardless of its circumstances, its severity and degree of guilt of an offender, is unfair and incompatible with the rule of law. In view of this, the interpretation of the provisions of the customs legislation on confiscation for customs rules violation for purposes of efficient law enforcement should be interpreted in a way that allows to adapt this administrative penalty to all the circumstances of the case to the greatest extent. The optimality of this decision is supported, in particular, by the experience of the most developed countries, where it is obligatory to check the existence of aggravating and mitigating circumstances when deciding on confiscation, such as taking all possible measures to prevent its use by the owner of a specially modified or adapted vehicle, the time of the breach of customs regulations or, as an another example, the possibility of returning a specially modified or adapted vehicle to its previous condition for its intended use in accordance with the recommendations of the Convention on the simplification and harmonization of customs procedures.