On May 10, 2023, the First Senate of the Constitutional Court of Ukraine, at the public part of the plenary session, in the form of written proceedings, deliberated the case upon the constitutional complaint of Van Kolk Frederik Johannes on the constitutionality of the second paragraph of Article 481.6 of the Customs Code of Ukraine.
According to the Judge-Rapporteur Olha Sovhyrya, the complainant, a citizen of the Kingdom of the Netherlands, Van Kolk Frederik Johannes, applied the Constitutional Court of Ukraine to verify the compliance of paragraph two of Article 481.6 of the Customs Code of Ukraine (hereinafter referred to as the Code) with Articles 41.1 and 41.4, Article 48, Article 61.2 of the Constitution of Ukraine.
Pursuant to Article 481.6 of the Code, „exceeding the period of temporary importation of personal use vehicles and commercial vehicles into the customs territory of Ukraine for more than thirty days, as well as the loss of these vehicles, including their dismantling, shall be punishable by a fine in the amount of ten thousand tax-free minimum incomes or confiscation of such vehicles“.
Therefore, the subject of constitutional review in this case is the sanction of Article 481.6 of the Code.
From the content of the constitutional complaint and the materials attached to it, it is clear that a protocol on violation of customs rules on the grounds of an administrative offence under Article 481.6 of the Code was drawn up against Van Kolk Frederik Johannes.
The courts found the applicant guilty of committing an offence under Article 481.6 of the Code, namely for exceeding the period of temporary importation of a personal use vehicle into the customs territory of Ukraine by more than 30 days, and imposed an administrative penalty in the form of a fine of UAH 170,000 (one hundred and seventy thousand).
According to the applicant, the sanction of Article 481.6 of the Code limited the right to individualisation of legal liability guaranteed by Article 61 of the Constitution of Ukraine. After all, the legislator did not provide for ‟the possibility to refer to the specific circumstances of the offence, property status, as well as other circumstances that could mitigate liability and affect the extent of the penalty during the consideration of the case on violation of customs rules and during the trial‟.
The Judge-Rapporteur informed that she had sent inquiries to public authorities, a number of higher education and research institutions, and members of the Research Advisory Council of the Constitutional Court of Ukraine with a request to express their positions on the issues raised in the constitutional complaint. In particular, the Verkhovna Rada of Ukraine, the Cabinet of Ministers of Ukraine, the Ukrainian Parliament Commissioner for Human Rights, the State Customs Service of Ukraine, the Ministry of Finance of Ukraine, educational and research institutions, as well as members of the Research Advisory Council of the Court M. Kucheriavenko, O. Riabchenko, Yu. Turianskyi expressed their positions.
The First Senate examined the case materials in the public part and proceeded to the in-camera part of the plenary session for a decision.
The session was attended by the representative of the subject of the constitutional complaint Vitalii Krasovskyi and the Permanent Representative of the Verkhovna Rada of Ukraine to the Constitutional Court of Ukraine Maksym Dyrdin.
The public part of the plenary session is available on the Court's official website under the heading “Archive of video broadcasts of the sessions”.
