Causes and conditions of smuggling in Ukraine

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Causes and conditions of smuggling in Ukraine

Didkivska H.V. - candidate of Law, Associate Professor, Associate Professor of the Department of Criminal Law and Criminology of the State Fiscal Service of Ukraine

Matkevych Yu.Yu. - graduate Student of the Department of Criminal Law and Criminology of the State Fiscal Service of Ukraine

Abstract

legal smuggling export

Statement of a problem. The reason for the com-mission of a single crime should be those negative social phenomena and processes under which the perpetrator has deep and stable anti-social views, habits that, as a result of criminal motivation, make her internal readiness to commit criminal assault [8, p. 84].

Such phenomena and processes can interact only indirectly, visible in the consciousness of the person, interacting with its internal attitudes and beliefs. Therefore, in order to determine the causes and conditions for the commission of socially dangerous acts, it is necessary to turn, first of all, to the motivation of the perpetrator of the crime. It should be noted that private interest, private ownership and private business motivation are organic to the market economy; After all, it's all natural to human society. “Private interest of the person, - V. Selivanov notes, - advantage, the benefit is certain engines of social being. Interest governs the world” [12, p. 35]. However, as a result of negative subjective and objective factors, human consciousness is deformed, which causes a private interest to give rise to vested anti-social motivation for the commission of a crime.

Analysis of the last researches and publications. Smuggling as a crime was considered in the research of domestic and foreign scientists: S.A. Hadyboeva, V.O. Vladimirova, Yu.G. Kislovsky, M.P. Karpushina, OM Omelchuk, OV Protsyuk, V.V Silenko, Yu.I. Suchkova and others. However, special attention needs to be paid to addressing the problem of improving the effectiveness of combating drug smuggling by improving criminal and criminal justice measures.

Purpose of scientific research. - is a solution to the issues of further improvement of criminal and crimi-nological measures in the field of combating drug smug-gling.

Statement of the main material. The main negative psychological elements that form self-serving motives for smuggling include:

1) a low level of morality, patriotism and national consciousness, constitutes one of the foundations of a per-son's awareness of himself as a member of the Ukrainian nation and people, his place in the history of the country. That is, because of the absence of such virtues, a person, such as narcotic drugs or weapons, contributes to the increase of the crime situation in the country, endangering the life and health of the population; Or by smuggling, a person ignores the importance of preserving the cultural heritage of Ukraine for the full development of the Ukrainian people, ignoring its cultural heritage.

2) a person's lack of understanding of the full extent of public lack of public communication. Thus, in fact, in the public consciousness of the general population, there is largely no understanding of the public danger of crimes in the sphere of economic activity. In particular, smuggling is punishable under criminal or administrative law, and therefore the ratio of criminal smuggling to administrative offences causes a person to be aware of it as not sufficiently dangerous to society.

In this plane, the opinion of the E.P. Gaivoronsky is noteworthy, which in its study argues that the existence of neighboring States within the USSR, some uncertainty of borders between them, the existence of close economic and related ties between the population of the CIS member States often cause psychological rejection of the inviolability of existing State borders by their citizens, understanding them as insignificant [2, p. 72]. However, in our opinion, such a statement cannot be considered correct, because in 26 years the population of most States of the former Soviet Union, including Ukraine, has identified themselves as independent and sovereign peoples, so to say the importance of such a factor is extremely debatable.

3) disregard for the interests of society, legal nihilism, which is one of the dominant and defining attitudes in the minds of smugglers. Legal nihilism is defined as the negative attitude of citizens towards the law and laws, and the existence of a position for them to achieve socially significant results by illegal means. In practice, this phenomenon is characterized by a lack of solidarity with legal regulations, their implementation in self-interest or under threat of coercion. The legal nihilism often gets demonstrative, aggressive and impudent character, is deep and mass, covers wide spheres of society, power structures, has considerable destructive, destructive potential and slows down development of the constitutional state [14, page 10].

Thus, there are reasons to argue that such negative changes in human consciousness arise from shortcomings in human moral education at various stages of socialization, shortcomings in State information policy, as well as material circumstances.

We consider it necessary to consider these reasons. Influence of family, family education at different stages of human life it is not identical: it, as a rule, is the most significant in children's and youthful years. If the family influence is positive, the personality of the child is formed in a law-abiding direction and vice versa. In any case, the link between the shortcomings of family education and deviant behavior not only of minors, but also of mentally established adults can be seen in numerous studies and in law enforcement practice.

The school plays an important role in the socialization of the individual, because it is during adolescence and youth that the person most intensively seeks, determines and approves his place in the system of social relations. It is at this age that the basics of behavior are learned, experience of moral and cultural and aesthetic thinking is acquired, the ability to independently use the whole spiritual fund, to perceive it as self-worth, therefore the influence of the family on the child is weakened. The criminological significance of the shortcomings in educational institutions is the inability to exercise the necessary influence to compensate for the shortcomings of family education and to counteract the negative influence in the informal communication environment, although it is specifically intended to perform the functions of education and upbringing of minors.

Educational, sports, cultural institutions should carry out function of education of citizens, instilling of patriot-ism fully. However the crisis phenomena within the last decades brought in economy, noticeable reduction of vol-umes of the state support in this sphere, decline of a con-siderable part of welfare infrastructure turned out to be consequence of what. In particular, culture in Ukraine appeared on the periphery of the state interests, having lost the due place among priorities of state policy, became chronic its insufficient funding.

Big criminogenic miscalculations in carrying out the state information policy matter. Especially it concerns mass media - the press, television, radio. As the social phenomenon, crime has the characteristic signs - relative mass character (spontaneity) therefore to trace specific negative influences of mass media on crime rather difficult; however existence of such influences it is obvious, especially concerns children and youth [1, p. 59]. The negative role of mass media consists in almost continuous wave of information which main contents is violence, cynicism, neglect the interests of society, distorting reality and establishing that the morals sometimes reign in society criminal, norms and values asocial environments considerably feeding functioning of mercenary crime. Specified is confirmed by the research Gololobov Yu.I. which having polled 37 members of organized criminal groups with a question: Whether «You use at implementation of criminal activity of a possibility of media?» Received affirmative answers [3, p. 47]. It is noted time confirms about need of carrying out regulatory policy of the state in the field of control of activity of media.

Material circumstances play a significant negative role in the adverse moral formation of the individual. The experience of the international community and individual countries, as well as domestic experience in combating smuggling, clearly show that smuggling is not only a legal but also an economic problem. Its main factors are rooted in the economy: they, along with many other factors, have become the material basis of smuggling [6, p. 114].

These include the poverty of the population and a sig-nificant stratification in the level of material support; Vio-lation of the principles of pay equity and the distribution of wealth; An increase in the number of people who have lost their prospects for inclusion in the normal life of society; De facto inequality of citizens before the law and the court; Lack of permanent work; Poor public funding for health care, expensive medicines and medical care, etc.

Lack of means often pushes a person to commit a crime, especially when material difficulties concern close persons. For example, according to the studies carried out, 85.7% of the smugglers had one or more persons held [2, p. 72]. Significant material difficulties negatively affect the family's educational functions, as parents often work in several organizations and prevent them from paying sufficient attention to the upbringing of the child.

Due to the increase in the efficiency of the State Employment Service in the direction of operational employment of citizens, the number of unemployed as of September 1, 2017, compared to the corresponding date of 2016, decreased by 12% (by 44 thousand). And amounted to thousands.

Loss of employment, dissatisfaction with life and unemployment have a negative impact not only on the morality of the person and his psyche, but also on the overall level of crime in the country. Thus, according to the information of the State Employment Service as of September 1, 2017, compared to the corresponding date of 2016, decreased by 12% (by 44 thousand). And amounted to 312 thousand. Unemployed citizens, which can be explained both by the increase in the efficiency of the public employment service in the direction of prompt employment of citizens, and by the significant outflow of the working-age population to other countries. The significant criminal role of this phenomenon is also demonstrated by the fact that there are quite a lot of persons who smuggle the unemployed. According to the Security Service, 44.8% of those who smuggled during 2007-2017 were unemployed.

According to the study, the 14.3% of smugglers were pensioners, owing to the very low level of pension cover-age, in particular, in some periods the minimum pension was even below the poverty line of $2 established by World Bank experts. United States dollars per day [5, p. 131].

No criminal assault, and smuggling is an exception, can be committed unless there are appropriate conditions that give rise to the causes of a certain development, facilitate their formation and realization. In particular, we have established that these are:

1. The lack of regulation of many issues of the legal status of the State border of Ukraine with the CIS coun-tries, as well as the insufficient equipment of the State border of Ukraine with these States by modern means of border control. 20% of the employees of the DFS of Ukraine surveyed by us consider these circumstances to be the most defining factors of smuggling. The lack of transparency and unclear certainty of Ukraine's borders with neighboring countries not only allow smugglers to freely transfer cultural property across the customs border, but also allow them to avoid responsibility for what they have done. For example, the establishment of a place of illegal crossing of the State border of Ukraine in conditions where the delimitation and demarcation of the State border between Ukraine and the Republic of Moldova have not been completed has led to the closure of a number of criminal proceedings on rehabilitative grounds (art. 284, p. 1, p. 2, of the Code of Criminal Procedure of Ukraine).

2. The high level of training of customs and other law enforcement officials, whose task is to combat smuggling. Thus, the inspection of the Federal Security Service of Ukraine found that in the customs authorities with 1,229 persons whose personal cases were studied, 400 did not have basic legal education, or did not undergo professional training, or did not improve their qualifications in a timely manner [9, p. 93]. The accumulation of experience and its exchange are also impeded by the turnover of staff in these bodies, in particular as a result of insufficient material support for the employees of these State institutions. The general disadvantage of training future customs officers in the relevant institutions is the inability to investigate, analyze and summarize the real errors of the bodies conducting initial inquiries and investigations in initiating and investigating criminal proceedings.

Insufficient level of training and which negligent relation to execution of professional duties it is charac-teristic of workers of all types of law-enforcement activity. Lack of special knowledge at customs officers does not allow them to carry out at appropriate level a customs design cargo and mailings therefore a significant amount of goods is illegally taken out abroad. Only in 10 months 2017 among customs officers of conducting 142 office investigations and 468 checks by results of which more than 100 workers of SFS of Ukraine are brought to disciplinary responsibility including the reprimands are issued to 78 persons, warned about incomplete office compliance of 26 workers, dismissed from customs authorities - 16 people [10].

3. Corruptive acts and official misconduct among customs officers. Corruption of individual units of local authorities, law enforcement and customs structures ena-bles organized groups of smugglers to avoid border con-trols and payment of customs duties. During 2013-2016, 588 official investigations were conducted in the State Tax Service of Ukraine, 430 materials were sent to law enforcement agencies for initiation of criminal proceedings on the facts of official abuse. However, only 35 customs officers were prosecuted and 39 corruption reports were drawn up. The results of the citizens' poll indicate a high level of corruption of customs officials. In particular, 27.1% of the surveyed respondents residing in the border areas experienced corruption in the customs authorities [4, p. 115]. Despite the measures being taken, the level of corruption in the customs authorities is still quite high.

The involvement of individual customs and law enforcement officials in organized crime is becoming a very different issue. Leaders of organized criminal groups have drawn officials into smuggling activities in order to use them to cover smuggling operations. Smugglers receive professional advice from individual employees of the National Security Service of Ukraine, the Federal Security Service of Ukraine and other specialists who are well aware of gaps in the implementation of border and customs controls and lacunae of existing legislation that contribute to the evasion of criminal responsibility by criminals. According to the published data of the SFS of Ukraine, on average, about 25-30 criminal proceedings are violated annually against individual customs employees, who, contrary to the interests of the service, acted in the interests of smugglers [7, p. 138].

Organized criminal groups are interested in and con-tribute to the rise of corruption in State bodies in order to ensure that smuggling takes place without hindrance. The participation of law enforcement officials significantly improves the effectiveness of organized criminal groups through, inter alia, their personal connections to law enforcement and other State bodies; Application of the experience of investigative or operational work to counter the current investigation and detection of crimes. This is also confirmed by our survey, in which 9.5% of the employees surveyed believe that former and current law enforcement officers are most often involved in carrying out a large part of the smuggling. Sometimes law enforcement officials not only take part in the activities of organized criminal groups, but also personally create and head them. The prevalence of this phenomenon is evidenced by interviews, jurisprudence and media infor-mation. Thus, corruption, official crimes, organized crime are closely linked, which increases their danger many times and causes great concern to the leaders of the State.

4.The level of cooperation and coordination between customs and law enforcement agencies has not been suf-ficiently developed. The improper interaction of the State Security Service of Ukraine with the State Fiscal Service of Ukraine is primarily related to the mismatch of materials received in cases of detention of smugglers by border guards. In particular, errors such as the absence of a detailed description of the circumstances of detention in the reports are frequent; incompleteness of an explanation of violators concerning the facts of the case; Lack of explanations from all persons detained in the commission of a crime; The detention scheme has been improperly drawn up and formalized; Often border guards do not detain smugglers, but wait for customs officers to arrive [15, p. 230].

We have identified the reasons for the low level of cooperation between the internal affairs authorities and customs, in particular:

-Professional: insufficient exchange of information, violation of deadlines provided for by law, heavy workload of pre-trial investigation bodies and others;

-Financial: insufficient provision of necessary equipment, high cost of expertise, insufficient high wages, etc.;

-personal: indifference, inadequate execution

of instructions, instructions, ignoring of the leading role of the investigator during pre-judicial investigation of criminal proceedings and others;

-Specific: such can be considered the distance of investigative bodies from customs control bodies and others.

The lack of evidence-based analysis of operational and investigative information on unsolved smuggling, the preparation for smuggling, and the identification of persons who left the subject of the crime at the time of its exposure have also contributed to the lack of har-monization of law enforcement action against smuggling. The exchange of information is most often irregular, limited, as there is mistrust among law enforcement officials about the possibility of leakage.

Quite often, when the internal affairs agencies detain criminals, they move smuggling outside customs control, even if there are signs of smuggling or violation of customs regulations, the SFS authorities of Ukraine are not informed of such cases in time, and materials and objects can be transferred only in a few days. As a result, violators tend to have time to harmonize their actions and disappear altogether. In such cases, it is difficult to document the fact of smuggling or violation of customs rules, and it is impossible to open criminal proceedings and conduct inquiries within the time limits established by law. Some of these problems were resolved through the transfer by the DFS investigator of powers to investigate smuggling offences.

5.There are many gaps and contradictions in the legislation and inconsistency of various regulations. In particular, the lack of legal support to counter smuggling is evidenced by frequent changes in the current customs legislation. The existence of inadequate legal norms and the resulting shortcomings in the work of the judiciary is noted in Decision № 8 of the Plenum of the Supreme Court of Ukraine of 3 June 2005 “On Judicial Practice in Cases of Smuggling and Violation of Customs Regulations” [11].

Conclusions

The imperfections of regulations can be divided into three groups by type of economic crime stimulation:

1)imperfect normative legal acts, the raw provisions, indirectly, indirectly promote economic crime;

2)normative and legal acts that distort social relations with their lacunae, as a result of which circumstances are created that directly contribute to the commission of crimes in the sphere of economic activity.

3)normative and legal acts, which in collusion with organized crime actors are edited in such a way as to ensure interests of organized criminal groups in the sphere of economic activity. Such legal acts include provisions that facilitate the criminalization of the introduction into the State authorities of their proxies and corrupt officials.

Criminal and criminal procedural legislation also contains certain shortcomings with regard to the type of offence under investigation. It is long overdue to give the status of law enforcement agencies and the right to carry out operational and search activities to certain units of customs authorities (anti-smuggling and own security departments), which, in our view, will significantly increase the level of fight against corruption and smuggling. This situation has an unsatisfactory impact on the fight against smuggling and corruption in customs authorities. Domestic legislation does not give the right to engage in operational and search activities to units of the SFS of Ukraine that combat smuggling, so when implementing complex operational and search activities of an international nature, the relevant intelligence and operational units of customs authorities of other states even refuse to provide the necessary information to the Ukrainian side [16, c. 396]. This significantly reduces the effectiveness of joint action and negatively affects the effectiveness of combating smuggling in general.

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