On the problems of applying the rule establishing liability for smuggling cash and (or) cash instruments

Federal Law of June 28, 2013, No. 134-FZ supplemented the Criminal Code of Russian Federation with Article 200.1 which establishes responsibility for the commission of cash smuggling and (or) cash instruments. This norm is designed to combat illegal trans-boundary movement of cash, as well as documentary bearer securities, which are often used to finance terrorism and for other purposes undermining the economic and socio-political foundations of the state. The law recognizes the illegal movement across the customs border of the Customs Union within the EurAsEC of cash and (or) cash instruments committed on a large scale as criminal and punishable offences. Disposition of rules has a distinct blanket character. Its interpretation and application are predefined by the need in regulatory legislation, in particular, customs and civil laws defining features of this crime. Special difficulty was the definition of the essential features of cash instruments. The definition of cash instruments formulated in the international customs laws and implemented in criminal law does not provide the enforcer with full and clear understanding of what types of securities are the subject of this crime, which would create a possibility of unlimited discretion in the enforcement process. There are difficulties with the definition of the large amount of cash instruments illegally transported across the customs border of the Customs Union within the EurAsEC - the feature designed to ensure the delimitation of crime stipulated by Art. 200.1 of the Administrative Code from similar administrative offences established by Art. 16.4 of the Administrative Code. So in accordance with Paragraph 1 of Article 200.1 of the Criminal Code the large amount for the application of rules under consideration is the amount of illegal movement of cash and (or) the cost of illegally transported cash instruments in excess of twice the size of the amount of cash and (or) the cost of traveler's checks approved by the customs legislation of the Customs Union within the EurAsEC to move without a written declaration. However, the Treaty on the order of moving by natural persons of cash and (or) cash instruments across the customs border of the Customs Union (Articles 3 and 4), import and export by a physical person of cash instruments, except for traveler's checks, is subject to customs declaration in writing, regardless of the nominal value of such instruments or amount of cash the right to which they certify. Consequently, based on the content of the above Article 200.1 of the Criminal Code, to define a large amount of cash instruments, except for traveler's checks, is not possible. In turn, this makes it virtually impossible to determine the boundaries of the criminal law response to deviant behavior of a person unlawfully transferring cash instruments (except for travelers' checks) through the customs border of the Customs Union.

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