پیوست ویژه H کنوانسیون کیوتو: تخلفات گمرکی

“administrative settlement of a Customs offence” means the procedure laid down by national legislation under which the Customs are empowered to settle a Customs offence either by ruling thereon or by means of a compromise settlement;

“compromise settlement” means an agreement under which the Customs, 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;

“Customs offence” means any breach, or attempted breach, of Customs law.

The investigation, establishment and administrative settlement of Customs offences by the Customs shall be governed by the provisions of this Chapter and, insofar as applicable, by the provisions of the General Annex.

National legislation shall define Customs offences and specify the conditions under which they may be investigated, established and, where appropriate, dealt with by administrative settlement.

National legislation shall specify which persons can be held responsible in connection with the commission of a Customs offence.

National legislation shall specify a period beyond which proceedings in connection with Customs offences may no longer be taken and shall fix the date from which that period shall run.

National legislation shall specify the conditions under which the Customs are empowered to :

• examine goods and means of transport;

• require the production of documents or correspondence;

• require access to computerized databases;

• search persons and premises; and

• secure evidence.

Personal searches for Customs purposes shall be carried out only when there are reasonable grounds to suspect smuggling or other Customs offences which are regarded as serious.

The Customs shall not search premises unless they have reasonable grounds to suspect smuggling or other Customs offences which are regarded as serious.

The Customs shall 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.

National legislation shall specify the procedure to be followed by the Customs after it has been discovered that a Customs offence has occurred and the measures they may take.

The Customs should set out the particulars of Customs offences and the measures taken in offence reports or administrative records.

The Customs shall seize goods and/or means of transport only when :

• they are liable to forfeiture or confiscation; or

• they may be required to be produced as evidence at some later stage in the procedure.

If a Customs offence relates only to part of a consignment, only that part shall be seized or detained, provided that the Customs are satisfied that the remainder of the consignment did not serve, directly or indirectly, in the commission of the offence.

When the Customs seize or detain goods and/or means of transport, they shall furnish the person concerned with a document showing:

• the description and quantity of the goods and means of transport seized or detained;

• the reason for the seizure or detention; and

• the nature of the offence.

The Customs should release seized or detained goods against adequate security, provided that the goods are not subject to any prohibitions or restrictions or needed as evidence at some later stage in the procedure.

The Customs should release from seizure or detention means of transport that have been used in the commission of a Customs offence where they are satisfied that:

• the means of transport have not been constructed, adapted or altered or fitted in any manner for the purpose of concealing goods; and

• the means of transport are not required to be produced as evidence at some later stage in the procedure; and

• where required, adequate security can be given.

Means of transport should only be forfeited or confiscated where:

• the owner, operator or person in charge was, at the time, a consenting party or privy to the Customs offence, or had not taken all reasonable steps to prevent the commission of the offence; or

• the means of transport has been specially constructed, adapted or altered or fitted in any manner for the purpose of concealing goods; or

• restoration of the means of transport which has been specially altered or adapted is not possible.

Unless they are likely to deteriorate quickly or it would, due to their nature, be impracticable for the Customs to store them, seized or detained goods should not be sold or otherwise disposed of by the Customs before they have been definitively condemned as forfeited or confiscated or have been abandoned to the Revenue.

National legislation shall specify the powers of the Customs in connection with detention of persons and shall lay down the conditions therefor, in particular the period after which detention becomes subject to a review by a judicial authority.

The Customs shall take the necessary measures to ensure, where applicable, that as soon as possible after a Customs offence is discovered:

• the administrative settlement of the latter is initiated; and

• the person concerned is informed about the terms and conditions of the settlement, the avenues of appeal and the time limits for such appeals.

Where during clearance of the goods a Customs offence has been discovered which is regarded as of minor importance, it should be possible for the offence to be settled by the Customs office which discovers it.

Where a traveller is regarded as having committed a Customs offence of minor importance, it should be possible for the offence to be settled without delay by the Customs office which discovers it.

National legislation shall lay down the penalties applicable to each category of Customs offence that can be dealt with by administrative settlement and shall designate the Customs offices competent to apply them.

The severity or the amount of any penalties applied in an administrative settlement of a Customs offence shall depend upon the seriousness or importance of the Customs offence committed and the record of the person concerned in his dealings with the Customs.

Where untrue particulars are furnished in a Goods declaration and the declarant can show that all reasonable steps had been taken to provide accurate and correct information, the Customs shall take that factor into account in considering the imposition of any penalty.

Where a Customs offence occurs as a result of force majeure or other circumstances beyond the control of the person concerned and there is no question of negligence or fraudulent intent on his part, no penalty shall be applied provided that the facts are duly established to the satisfaction of the Customs.

Goods that have been seized or detained, or the proceeds from the sale of such goods after deduction of any duties and taxes and all other charges and expenses incurred, shall be:

• turned over to the person entitled to receive them as soon as possible after the Customs offence has been definitively settled; or

• when this is not possible, held at their disposal for a specified period,

provided that the goods have neither been condemned as forfeited or confiscated nor abandoned to the Revenue as a result of a settlement.

Any person implicated in a Customs offence that is the subject of an administrative settlement shall have the right of appeal to an authority independent of the Customs unless he has chosen to accept the compromise settlement.