ANNEX H.2.
concerning Customs offences
Entered into force: .....
June 1982
TABLE OF CONTENTS
I. Text and Commentary
- Introduction 5
- Definitions 6
- Principles (provisions 1 - 2) 8
- General provisions
a) Liability of persons (provision 3) 9
b) Period of limitation for proceedings
in connection with Customs offences (provision 4) 10
- Investigation and establishment of Customs offences
a) Investigation of Customs offences (provisions 5 - 7) 10
b) Procedure to be followed when a
Customs offence is discovered (provisions 8 - 9) 11
c) Seizure or detention of the goods (provisions 10 - 14) 12
d) Seizure or detention of means of transport used in the
commission of a
Customs offence (provisions 15 - 16) 13
e) Detention of persons (provision 17) 14
- Administrative settlement of Customs offences
a) Customs offences that can be dealt with by
administrative settlement (provisions 18 - 22) 14
b) Penalties applicable (provisions 23 - 24) 15
c) Cases not resulting in penalties (provisions 25 and
26) 17
d) Customs offences punishable by a fine (provisions 27 -
29) 18
e) Return of seized or detained goods and
discharge of security (provisions 30 - 31) 19
- Right of appeal (provision 32) 20
- Information concerning the administrative settlement
procedure (provision 33) 20
II. Entry into force
- Contracting Parties having accepted the Annex 23
III. Reservations
- Contracting Parties having entered reservations 25
- Reservations entered (in alphabetical order of Contracting
Parties)
IV. Alphabetical Index
V. Provisions studied in detail and reproduced in Volume IV
I.-TEXT AND COMMENTARY *
* Annex H.2. was adopted by the Permanent Technical Committee at its
103rd/104th Sessions in April 1979, and was subsequently amended at
the Committee's 105th/106th Sessions in December 1979. The Annex has
been incorporated in the Kyoto Convention by decision of the Council,
taken on 18 June 1980 at its 55th/56th Sessions held in Brussels. It
entered into force on .....
Introduction
One of the tasks of the Customs authorities is to investigate and
establish any breach or attempted breach of the statutory or
regulatory provisions which they are responsible for enforcing. In
some countries, Customs offences may be dealt with by the Customs
authorities, in accordance with procedures laid down in national
legislation. In this case only Customs offences which are regarded as
relatively serious are brought before the administrative tribunals or
courts of law.
National legislation confers upon the Customs authorities a wide range
of investigatory powers in connection with Customs offences. For
example, they can examine goods and means of transport, require the
production of documents, and search persons and premises.
When a Customs offence has been established, the Customs authorities
are empowered, in certain circumstances, to take the necessary
precautionary measures and, in particular, to detain the goods and
means of transport.
The penalties applied in respect of Customs offences vary according to
the seriousness or the importance of the offence. While certain
Customs offences which are regarded as particularly serious may have
severe consequences, in the case of offences which are regarded as of
minor importance a small fine is generally the maximum imposed.
If certain conditions are fulfilled, in particular if no fraudulent
intent is involved, there is normally no penalty where a Customs
offence arises because of an inadvertent error, through force majeure
or because of other circumstances beyond the control of the person
concerned.
The provisions of this Annex deal with the conditions under which the
Customs authorities investigate and establish Customs offences. The
repression of Customs offences, by application of suitable penalties,
is also dealt with, but only to the extent that it falls within the
competence of the Customs authorities.
This Annex does not cover measures taken by the Customs authorities
under bilateral or multilateral mutual administrative assistance
agreements and in particular the measures provided for in the
international Convention on mutual administrative assistance with a
view to the prevention, investigation and repression of Customs
offences of 9 June 1977 (Nairobi Convention).
This Annex concerns neither the procedure to be followed nor the
various measures that can be taken by the Customs authorities for the
purpose of collecting fines or executing judgements or sentences
handed down by the courts or tribunals.
Other offences (e.g. theft, forgery, assaults upon Customs officers
engaged in the performance of their duties) committed in connection
with a Customs offence are similarly outside the scope of this Annex.
Definitions
For the purposes of this Annex:
(a) the term " Customs offence " means any breach, or attempted
breach, of Customs law (1);
(b) the term " Customs law " means all the statutory or regulatory
provisions enforced or administered by the Customs administrations
concerning the importation, exportation or transit of goods (2)(3);
(c) the term " import and export duties and taxes " means Customs
duties and all other duties, taxes, fees or other charges which are
collected on or in connection with the importation or exportation of
goods but not including fees and charges which are limited in amount
to the approximate cost of services rendered (4);
(d) the term " release " means the action by the Customs to permit
goods undergoing clearance to be placed at the disposal of the persons
concerned (5);
(e) the term " administrative settlement of a Customs offence " means
the procedure laid down by national legislation under which the
Customs authorities are empowered to settle a Customs offence either
by ruling thereon or by means of a compromise settlement (6);
(f) the term " compromise settlement " (7) means an agreement under
which the Customs authorities, being so empowered, consent to waive
proceedings in respect of a Customs offence subject to compliance with
certain conditions by the person(s) implicated in that offence;
(g) the term " person " means both natural and legal persons, unless
the context otherwise requires.
COMMENTARY
(1) Definition (a), which is taken from the Nairobi Convention, has a
very broad scope; irregularities and inadvertent errors are also
covered.
(2) The terms " importation ", " exportation " and " transit " must
be interpreted in a broad sense, covering all Customs procedures. The
Annex deals with all Customs offences involving goods under Customs
control. However, the Annex does not cover statutory or regulatory
provisions applied by Customs administrations but relating to
non-Customs matters, such as provisions regarding veterinary,
phytosanitary or phytopathological controls, etc.
(3) As the competence of Customs administrations varies from country
to country, the term " Customs law " will not have the same meaning
for all Contracting Parties.
The definition is couched in very general terms. It refers to,
for example, the application of control measures (as control is
implicit in the Customs activities described in the rest of the
definition), the case of financial operations (insofar as the goods
themselves are concerned and to the extent of the competence of the
Customs administrations), and the case of refunds granted by members
of the European Economic Community in connection with the exportation
of certain agricultural products, insofar as they involve a "
provision enforced or administered by the Customs administration " of
these countries at exportation.
According to the context in which it is used the term " Customs
administrations " may designate either the central administration or
the outside services. If they consider it necessary, Contracting
Parties may introduce appropriate national provisions to define the
competence of the various levels.
(4) The definition also covers Value Added Tax collected in
connection with the importation of the goods.
(5) Release is unconditional when the goods are freed from any
Customs restrictions. It is conditional when the goods remain subject
to certain restrictions.
(6) In some countries, it is left to the offender to request a
compromise settlement, whereas in others a compromise settlement is
offered by the Customs. Both possibilities are covered by the
definition.
(7) The compromise settlement procedure is not universally applied.
The fact that this term has been defined does not place any special
obligations on Contracting Parties whose national legislation does not
provide for compromise settlement. These Contracting Parties will have
to enter appropriate reservations in respect of the provisions of the
Annex which deal with this procedure.
Principles
1. Standard
The investigation, establishment and administrative settlement of
Customs offences shall be governed by the provisions of this Annex
(1).
COMMENTARY
(1) There is no obligation on States to accept all the provisions of
the Annex and reservations may be entered in respect of any Standards
and Recommended Practices that they are not in a position to apply
(see Article 5 of the Convention).
Customs authorities are free to enact rules on aspects of Customs
offences not covered by specific provisions of this Annex.
Customs authorities may grant greater facilities than those
provided for in the Annex. The granting of such greater facilities is
recommended in Article 2 of the Convention.
2. Standard
National legislation (1) shall define Customs offences and specify the
conditions under which they may be investigated, established and,
where appropriate, dealt with by administrative settlement.
Notes 1. Obstruction or hindrance of the execution of control
measures (2) by the Customs and the presentation to Customs of false
invoices or other false documents are normally regarded as Customs
offences.
2. In some countries, any person who has prepared or caused to
be prepared or who has procured documents which are falsified or
intended to deceive the Customs authorities and are used in a foreign
country is regarded as having committed a Customs offence in the
country where the documents were prepared (3).
COMMENTARY
(1) See commentary (1) on Article 3 of the Convention.
(2) The examples given do not cover assault upon Customs officers
engaged in the performance of their duties, an offence punishable
under ordinary law.
(3) This mutual assistance measure is expressly provided for in
certain preferential trade agreements, e.g. those concluded by the
European Communities with the EFTA, ACP and Mediterranean countries-
see also Standard 13 of Annex D.2. concerning documentary evidence of
origin.
General provisions
a) Liability of persons
3. Standard
National legislation shall specify which persons can be held
responsible in connection with the commission of a Customs offence.
Notes 1. Any person aiding or abetting the perpetrators of a
Customs offence is normally held responsible.
2. Any person who finances a Customs offence or participates as
insurer may also be held responsible.
3. In some countries, the offender and his accomplices are held
liable for the payment of monetary penalties imposed upon them
individually. In some other countries, however, each of these persons
may be held jointly liable for the monetary penalties incurred by the
others.
4. Where a Customs offence is committed by a natural person
acting for or on behalf of a legal person, that legal person may be
held liable for the monetary penalties incurred.
5. Where a Customs offence arises from untrue particulars
furnished in a Goods declaration, the declarant's liability may be
limited if he has simply reproduced information communicated to him by
his principal and had no reasonable cause to question the validity of
the information so provided.
b) Period of limitation for proceedings in connection with Customs
offences
4. Standard
National legislation shall specify a period beyond which proceedings
in connection with Customs offences may no longer be taken (1) and
shall fix the date from which that period shall run.
Notes 1. In most countries, the normal period beyond which
proceedings in connection with Customs offences may no longer be taken
does not exceed five years (2).
2. For example, the period may run from the date on which the
Customs offence was committed or, in the event of a continuing breach
of Customs law, from the date on which that breach comes to an end.
COMMENTARY
(1) The provision concerning the period of limitation for proceedings
in connection with Customs offences is a general one. It is applicable
to the investigation, establishment and repression of Customs
offences.
(2) In some countries, when the Customs authorities initiate
proceedings before the expiry of the period of limitation (for
example, by preparing an offence report), a new period of limitation
runs from that date.
Investigation and establishment of Customs offences
a) Investigation of Customs offences
5. Standard
National legislation shall specify the conditions under which the
Customs authorities are empowered to examine goods and means of
transport, require the production of such documents or correspondence
as may establish or contribute towards establishing that a Customs
offence has been committed, and search persons and premises.
Notes 1. Provision may be made for certain investigation
measures to be decided upon or to be taken only by Customs officers of
a particular grade.
2. Customs officers may be authorised to make copies of
documents and correspondence produced, or to retain the originals.
3. Customs officers may be authorised to request the assistance
of other national authorities in the investigation of Customs
offences.
6. Standard
Personal searches for Customs purposes (1) shall be carried out only
when there are reasonable grounds to suspect smuggling (2) or other
Customs offences which are regarded as serious (3).
COMMENTARY
(1) Persons may be searched not only to ensure that they are not in
possession of goods liable to seizure, but also to find documentary or
other evidence that a Customs offence has been committed.
(2) The term " smuggling " is defined in the Nairobi Convention.
(3) As the Annex does not specify what is meant by " an offence
regarded as serious ", Customs authorities may wish to decide at
administrative level which offences fall in this category.
7. Standard
The Customs authorities shall not search premises (1) unless they have
reasonable grounds to suspect smuggling (2) or another Customs offence
which is regarded as serious.
Note Searching premises under this provision is not to be confused
with the normal inspections carried out by the Customs authorities for
Revenue purposes, for example, to audit the books kept at a place of
manufacture or to inspect Customs warehouses.
COMMENTARY
(1) Searches may involve not only commercial premises but also the
homes of private persons. In accordance with the provisions of
Standard 5, it is left to the national legislation to specify the
conditions applicable to the searching of premises and, in particular,
cases where a warrant is required.
(2) See commentary (2) on Standard 6.
b) Procedure to be followed when a Customs offence is discovered
8. Standard
National legislation shall specify the procedure to be followed by the
Customs authorities after it has been discovered that a Customs
offence has occurred and the measures they may take.
Notes 1. Particulars of Customs offences are normally set out
in offence reports or administrative records.
2. Depending on the seriousness of the Customs offence, the
Customs authorities may be empowered to require security, to seize or
detain the goods and means of transport, or to detain the persons
concerned and hand them over to other competent authorities.
9. Standard
After discovering a Customs offence the Customs authorities shall,
unless they decide to take no further action, inform the person
concerned as soon as possible of the nature of the alleged offence,
the legal provisions that may have been contravened and, as
appropriate, the possible penalties.
c) Seizure or detention of the goods
10. Standard
Goods shall not be seized or detained unless they are liable to
forfeiture or adequate security cannot be given or they may be
required to be produced as evidence at some later stage in the
procedure or are subject to prohibitions or restrictions.
11. Recommended Practice
If a Customs offence arises from only part of a consignment, only that
part should be seized or detained, provided that the remainder of the
consignment did not serve, directly or indirectly, in the commission
of the offence (1).
COMMENTARY
(1) This provision is applicable not only in the case of consolidated
consignments but also where the consignment consists of a small number
of packages despatched one sender to a single addressee.
12. Standard
When the Customs authorities seize or detain goods, they shall furnish
the person concerned with a document showing the
description and quantity of the goods seized or detained and
specifying the nature of the offence.
Note The particulars may be contained in the offence report or
administrative record, a copy of which may be supplied to the person
concerned.
13. Standard
The Customs authorities shall release seized or detained goods against
adequate security, provided that the goods are neither subject to any
prohibition or restriction, nor liable to be needed as evidence at
some later stage in the procedure nor liable to forfeiture.
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