On 15 January 2025, the Second Senate of the Constitutional Court of Ukraine (hereinafter, the “Court”) at its plenary session deliberated the case and delivered Decision No. 1-r(ІІ)/2025 upon the constitutional complaint of Artur Boiarov regarding the compliance of Article 380.5.1 of the Customs Code of Ukraine (hereinafter, the “Code”) with the Constitution of Ukraine (constitutionality).
Based on the legitimate purpose of the disputed provision of the Code and the proportionality of the means chosen by the legislator, the Court held that Article 380.5.1 of the Code is constitutional.
The judge-rapporteur in the case is Vasyl Lemak.
In September 2020, Artur Boiarov filed an administrative claim with the court against the Volyn Customs of the State Customs Service of Ukraine (hereinafter, the “Customs”), in which he requested to declare unlawful the Customs' inaction in failing to grant him, as a non-resident, a permit to transfer the right to use the customs regime of temporary importation in respect of a private vehicle from another non-resident, to oblige the Customs to grant him a permit to transfer the right to use the customs regime of temporary importation in respect of a private vehicle to another non-resident in accordance with Articles 380.1 and 380.2 of the Code. The court decisions dismissed the claim.
Then the complainant lodged a constitutional complaint with the Court, considering that Article 380.5.1 of the Code does not comply with Articles 41.1, 57.1 of the Constitution of Ukraine, since “due to the existence of this provision and the lack of its quality” he was deprived of the opportunity to use the vehicle imported into the customs territory of Ukraine, which belongs to him on the right of ownership.
In examining the issues raised in the constitutional complaint, the Court proceeds from the fact that the principles of the rule of law established by the Constitution of Ukraine Article 8.1, respect for human rights and freedoms (Article 3), in particular, the inviolability of property rights (Articles 41.1, 41.4), are applicable in this case.
Considering the issue of permissible limits of restrictions on the right to property guaranteed by the Constitution of Ukraine, the Court in its previous decisions has stated that ‘the right to property is not absolute, i.e. it can be restricted, but interference with this right may be carried out only on the basis of law in compliance with the principle of legal certainty and the principle of proportionality, which requires achieving a reasonable balance between the interests of the individual and society. When restricting the right to property in the public interest, proportionate measures may be considered to be those that are less burdensome to the rights and freedoms of individuals among all the measures available for application.”
The Decision states that the disputed provision of the Code establishes the peculiarities of temporary importation of private vehicles by citizens, namely, it determines that temporarily imported privite vehicles may be used in the customs territory of Ukraine only by citizens who imported the said vehicles into Ukraine for their personal needs.
The court notes that the Article 380.5.1 of the Customs Code is in conjunction with other provisions of the Code. The disputed regulation establishes a regulatory construction that makes it impossible (prohibits) for citizens to transfer the right to use temporarily imported private vehicles in the customs territory of Ukraine to other persons (both resident and non-resident citizens), except for those private vehicles that are classified under heading 8903 (yachts and other floating craft for leisure or sport; rowing boats and canoes) according to the Ukrainian Classification of Goods for Foreign Economic Activity.
In examining the proportionality of the legislator's choice of interference with property rights, the Court concluded that the restriction in the form of a ban on transferring to other persons the right to use a temporarily imported private vehicle in the customs territory of Ukraine does not violate the essence of property rights, since, although it imposes certain restrictions on its exercise in terms of use, it does not involve the unlawful deprivation of property rights prohibited by the Constitution of Ukraine (Article 41.4).
The Court's Decision states that the disputed provision of the Code meets the requirements of “quality of law” in terms of accessibility, accuracy and predictability and avoids arbitrariness. This allows a person, if necessary, after legal advice, to clearly understand the content of the legal requirement, in particular, to foresee the consequences associated with the relevant behaviour.
The Court stated that the purpose of this legislative measure is constitutionally justified - it is to protect the economic sovereignty of Ukraine in terms of the state's customs interests and the state's desire to balance the budget of Ukraine (Article 95.3). The disputed provision of the Code as a legislative measure is compatible with the obligations assumed by Ukraine under international treaties, in particular the Istanbul Convention.
The Decision states that the legislator used the least burdensome means of interfering with the exercise by citizens of their rights to own, use and dispose of their property. Such legislative interference with property rights is temporary in nature, as it restricts the right to transfer a temporarily imported private vehicle for use by other persons only during the time such vehicle is in the customs territory of Ukraine.
In addition, the legislator did not establish legal liability for the transfer of a vehicle for private use temporarily imported into the customs territory of Ukraine to the possession, use or disposal of a person who did not directly import such a vehicle into the customs territory of Ukraine if the person who imported the vehicle for private use into the customs territory of Ukraine is in the vehicle.
In view of the foregoing, the Court held that Article 380.5.1 of the Code is a proportionate and justified legislative measures of interfering with the property right guaranteed by Article 41 of the Constitution of Ukraine, and therefore does not contradict Articles 8, 41.1, 41.4, 57.1 of the Constitution of Ukraine.
