Chapter 36. EXPERT ANALYSES AND INVESTIGATION IN CUSTOMS CONTROL
Article 378. Purpose of Expert Analyses in Customs Control
1. Expert analysis of goods, means of transport, and the documents containing the information pertaining to said goods, means of transport or the operations (activities) associated with them shall be conducted in those instances when the customs control procedure requires special skills and knowledge for clarifying arising questions.
2. Expert analysis is conducted by expert staff of customs laboratories, as well as by the experts attracted from other specialised organisations, or the other experts appointed by customs authorities. Appointed as an expert may be any duly qualified person who has adequate skills and knowledge for drawing up an expert conclusion. Customs authorities recruit such experts for performing required expert analyses on a contractual basis. In case an expert analysis is initiated by an interested person, such a person has the right to submit to customs authorities his (or her) proposal with regard to the candidate expert.
3. In the instance when the necessity of an expert analysis has been acknowledged, the customs officer in charge, acting upon an approval passed by the chief of the customs office or the his deputy, shall draw up a resolution in that regard specifying the grounds for such expert analysis. Said resolution includes the expert’s full name, the name of the organisation where the assigned analysis is to be conducted, the questions to be resolved by the expert(s), the materials and the documents provided to the expert(s), as well as the time period assigned for performing said expert analysis and submitting the conclusion thereof to the customs authorities.
The above resolution also contains a clause of the expert’s administrative responsibility for a premeditated distortion of the analytical conclusion.
4. The time period of the expert analysis may not exceed:
- the time terms stipulated for the goods temporary storage (Article 103) in case the goods may not be released prior to the results of the ongoing expert analysis;
- six months if subject to said expert analysis are means of transport;
- one year, in other instances.
5. The customs officer shall be obliged to inform the declarant or the other person responsible for the goods, in case said person has been identified, with regard to the resolution to perform an expert analysis, and explain to said person his (or her) rights stipulated by Article 382 of this Customs Code which fact should be certified by an appropriate mark made by the person concerned or his (or her) representative.
6. The expenses incurred by the customs authorities, the customs laboratories and other experts and organisations responsible for the expert analyses shall be reimbursed from the federal budget, except for the expert analyses which were not initiated by the customs authorities.
Article 379. Expert’s Conclusions (Report)
1. The expert shall render his (or her) conclusions of the conducted investigation in a written report based on and with consideration of the achieved results.
2. The expert’s report should specify the time and place where the investigation was conducted, identify the person(s) who conducted the investigation and specify the reasons for it, list the questions posed before the expert, define the investigation objective(s), designate the documents and materials provided to the expert, explicate the contents and findings of the investigation including the methods applied in the course of the investigation, for the evaluation of its results, the expert’s conclusions with regard to the investigation objectives and their substantiation.
The materials and the documents supporting the conclusions made by the expert(s) should be attached thereto and remain its inseparable component.
Should the expert reveal any essential circumstances pertaining to the case under investigation which were not assigned to the expert for investigation, he (or she) will have the right to include those expert findings in the final conclusions.
3. When an expert investigation involves participation of several experts, the conclusions thereof shall be signed by all experts. If case of a disagreement among the experts, each of them shall draw and submit his (or her) conclusions separately.
4. The customs office that initiated the expert investigation shall be obliged to hand a duplicate copy of the export investigation report (conclusions) to the declarant or the other persons responsible for the goods and means of transport, provided such persons have been identified, or advise the declarant that such conclusions cannot be drawn.
5. In the process of decision making, the customs authorities shall take into consideration the conclusions with regard to the investigations drawn by the expert(s), as well as the conclusions of the expert investigations initiated by he declarant or another interested person.
Article 380. Additional and Second Expert Analysis
1. In case the available conclusions are not sufficiently clear or comprehensive, the customs authorities have the right to appoint an additional expert analysis which may be assigned to the same or other exports or expert organisations.
2. In case the export conclusions are unsubstantiated or there are reasons to doubt their correctness, the customs authorities may assign a second expert analysis to be conducted by another expert.
3. The additional and the second expert analyses are assigned and conducted pursuant to Articles 378 and 379 of this Customs Code.
Article 381. Expert’s Rights and Responsibility
1. An expert has right to:
[1] examine the materials pertaining to the subject of the investigation;
[2] upon permission of the customs authorities, to attract other exports for conducting the assigned expert analysis;
[3] request additional materials requisite for conducting the assigned expert analysis;
[4] refuse to draw conclusions if the expert deems insufficient the materials and information provided to him (or her), in the instance the expert has to acknowledge that his (or her) skills and experience are insufficient for conducting the assigned expert analysis. The expert’s written report substantiating his (or her) incapability to draw the conclusion shall be submitted to the customs office that assigned said expert analysis;
[5] upon permission of the customs authorities, to participate in various activities in the process of effecting the customs control measures.
2. The information obtained in the process of expert investigation or during preparations for its conduct which constitutes commercial, banking or any other secret protected by law, as well as any other confidential information should not be revealed or used of any other purposes, or be transferred to a third person, except in the instances stipulated by federal laws.
Article 382. Rights of the Declarant and Other Persons Responsible for Goods and Means of transport and Their Representatives upon Resolution to Conduct Expert Analysis (Investigation)
1. In case the export analysis (investigation) has been assigned, the declarant or another person responsible for the goods and/or means of transport and their representatives have a right:
1) to state a motivated demurrage of an expert;
2) to request appointment of a specific expert or organisation;
3) to request assignment to the export of additional questions with regard to obtaining the expert conclusions thereto;
5) to take the goods samples and specimens (Article 383);
6) to be familiarised with the expert conclusions or the expert’s statement with regard to his (or her) incapability to draw the conclusion and obtain a duplicate copy of said conclusion or statement;
7) to request an additional or a second expert analysis.
2. In case the request made by the declarant or another person responsible for the goods and/or means of transport or by their representatives has been satisfied, the customs office in charge of the expert investigation shall pass a requisite resolution in that regard.
In case said request has been declined, the customs officer in charge of the expert investigation shall be obliged to hand a motivated written response to that effect to the person who made such a request.
Article 383. Samples and Specimens
1. In the process of customs control procedures, the customs authorities have the right to take samples and specimens of the goods required for investigation. The fact of samples and specimens shall be formalised in a report made in accordance with the form approved by the Federal Customs Authority. The duplicate copy of said report is handed in to the person responsible for the goods, provided said person has been identified.
Whenever necessary the specimens and samples will be taken with participation of an expert or a specialist.
2. Specimens and samples of the goods in customs custody may also be taken by declarants, by persons with proper powers with regard to said goods and their representatives specified in Item 1 of Article 398 of this Customs Code and the employees of other state agencies.
3. Samples and specimens shall be taken in the minimal quantities providing their investigation.
The authorisation for taking samples and specimens may be issued to the persons specified in Item 2 herein provided such taking:
- does not impede pursuance of the customs control procedures;
- does not affect the goods properties;
- is not conducive to evasions of dutiable payments or non-observance of the restrictions and prohibitions stipulated by the Federal Law of the Russian Federation on the State Regulation of Foreign Trade Activities.
4. A separate customs declaration will not be submitted with regard to the taken samples and specimens provided said samples are entered in the customs declaration for the imported goods.
A declarant has the right to reduce the customs value of the declared goods by the customs value of the taken samples and specimens in case said samples and specimens were seized by the customs office and not returned within the specified time period.
5. The declarants and the other persons responsible for the goods and their representatives have the right to be present at the instance of taking of samples and/or specimens of the goods by customs officers and employees of other state agencies.
6. Customs officers have the right to be present at the instance of taking of samples and/or specimens of the goods employees of other state agencies, as well as the other persons specified in Item 2 herein.
7. Declarants and their representatives shall be obliged to provide assistance to customs officers when the latter take samples and specimens of goods including the performance at their expense of cargo-handling and other operations with goods.
8. Customs officers shall be entitled to take samples in the absence of the declarant and his (or her) representatives in the instances stipulated by Item 3 of Article 372 of this Customs Code. Taking of samples and specimens in such situations shall be performed in the presence of at least two witnesses.
9. The customs authorities should be informed of the results of the conducted investigation of the samples and specimens taken by employees of other state agencies and notify about them they persons specified in Item 2 herein.
10. The order of taking samples and specimens of goods, as well as their investigation procedures are approved by the Federal Customs Authority in accordance with this Customs Code and other legal statutes of the Russian Federation.
11. Upon completion of the investigation, the samples and specimens will be returned to the goods owner, except in those instances when such samples and specimens are subject to destruction or utilization in accordance with Russian legislation, as well as in the instances when the expenses for return of the samples and specimens to their owner exceed their value.
Article 384. Participation of a Specialist in Customs Control Procedures
1. Whenever required, an unbiased specialist possessing special knowledge and skills, which are required for rendering assistance to the customs authorities in the process of customs control procedures, may be invited for participating in specific activities including those involving use of various technical facilities.
2. Invitation of a person to participate in customs control procedures in capacity of an expert is effected on a contractual basis.
3. The invited specialists will have the following rights:
[1] to examine the materials relating to the subject of the activities performed with his immediate participation;
[2] upon permission of the customs officer in charge, to question the other participants of such actions on the issues pertaining to the substance of said actions;
[3] to examine the documents drown up based on the results of the actions performed in the process of customs control procedures, in which said specialist was taking part, and make statements and comments with regard to the actions performed by him (or her) liable for recording in such documents.
4. The specialist shall be obliged:
[1] to participate in the actions requires special knowledge and/or skills, and make comments with regard to the actions performed by his (or her);
[2] to append his (or her) signature for certifying the fact of performance such actions, their contents and outcome.
5. The information obtained by the specialist in the process of his (or her) involvement in the customs control procedures constituting commercial, banking, or any other secrets protected by law, as well as any other confidential information shall not be made public, used for other purposes, transferred to a third party, except in those instances stipulated by the statutes of federal law.
6. The expenses incurred by the customs authorities in connection with the invitation of a specialist shall be reimbursed from the federal budget except the instances when the expert was invited an interested person rather than the customs authorities.
Article 385. Attraction of Specialists from other State Agencies for Assisting in Customs Control Procedures
1. In accordance with the Russian legislation, the customs authorities have the right to attract specialists from the law-enforcement or supervisory agencies for rendering them assistance in the process of customs control procedures.
2. The expenses incurred by the customs authorities in connection with the attraction of specialists from other state agencies, in case such activities performed by them do not comply with their lines of duty, shall be reimbursed in the order determined by the Government of the Russian Federation.
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