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Obstacles and shortcomings when Customs implement anti-smuggling- Part 2: Inadequacies in handling firecrackers and material evidence

09:50 | 02/08/2019

VCN- The customs force not only encounters difficulties in implementing criminal investigation, but also facesmany shortcomings in handling administrative violations.

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A petrol tanker of unknown origin was stopped by the Northern Customs Marine Enforcement Fleet – Unit 1. Photo: T. Binh.

Not commensurate with authority

According to regulations on sanctioning of administrative violations (Law on Handling of Administrative Violations; Decree 127/2013/ND-CP, amended and supplemented in Decree No. 45/2016/ND-CP), director of the Anti-Smuggling Investigation Department (General Department of Customs) has the right to fineup to 50 million VND for individuals and 100 million VND for organizations. But in fact, there are many cases of violations with material evidenceof great value, the regulations on such sanctions are not commensurate with the functions and tasks of the Anti-Smuggling Investigation Department and not suitable with the practical situation.

There are also many obstacles in handling material evidences. This is implemented in accordance with three laws: Law on Handling of Administrative Violations; Law on management and use of public assets; Law on Property Auction, leading to extended implementation time, raising expenses for storage and rental of yards.

In particular, the guiding documents on the handling of confiscated administrative violation material have many problems, such as determining the original price, the listing price, or confiscated administrative violation material evidences cannot be sold. For example, the Northern Customs Marine Enforcement Fleet – Unit 1 (Anti-Smuggling Investigation Department) detected and seized nearly 43m3 of A92 gasoline (equivalent to more than 40,000 liters) withoutcertificatesof the legal origin. However, this item is allowed to be sold to petroleum enterprises, when businesses do not buy the confiscated goods in accordance with regulations, the destruction of tens of thousands of liters of gasoline is not implemented.

Another major obstacle related to the handling of administrative cases of the Court to violation cases confiscated by the customs offices.

For these cases, the Anti-Smuggling Investigation Department has investigated, prosecuted or petitioned.The investigating agencies also concluded they had fraudulent documents forillegal goods, but then transferred the file to the customs authorities for confiscating infringing goods. Notably, whenCustoms offices and investigating agencies verified and requested goods owners to be present,all suspects fled. However, when the investigating agency suspended the case and the Customs authorities confiscated the goods, the subjects appeared again, proceeded to court to retrieve infringing goods that had been taken by the Customs authorities.

In order to remove these difficulties, the Anti-Smuggling Investigation Department proposes to amend and supplement regulations and guidance on criminal law (on investigation competence, order and procedures of investigation) for the customs to have a legal basis when handling these cases.

Regarding inadequacies in the Law on Handling of Administrative Violations, it proposes to amend the authority to confiscate material evidence of the Anti-Smuggling Investigation Department in accordance with the functions, tasks and practical situation.

For "ghost enterprises" in import-export activities, the Anti-Smuggling Investigation Department proposes the Ministry of Planning and Investment to review and report to the Government to amend regulations related to the establishment of enterprises according to the direction to create favorable conditions but must ensure management requirements to the head of the enterprise, in order to prevent "ghost enterprises" for smuggling and tax evasion.

Problems in handling firecrackers

In addition to obstacles and shortcomings in some provisions of the law, the Customs authorities also face difficulties in implementing competence, functions and tasks with the Border Guard (Border Guard Army).

Specifically, the representative of the Anti-Smuggling Investigation Department saidthe regulations on the task of inspection, supervision and control of means of transport, the handling violations at border gates of the Border Guard Army (according to Decree 112/2014/ND-CP, Circular 09/2016/TT-BQP) is not consistent with the Customs Law, the responsibilities of the Border Guard Army have not been clearly defined and overlap with the duties of the Customs authorities.

According to the Joint Permit form specified in Circular 88/2014/TT-BGTVT of the Ministry of Transport, the Customs and Border Guard stamped on the Joint Permit in 2 different boxes. Therefore, when vehiclescross the border,the twounitsdo the same procedures as checking records, registering, updating and storing information of vehicles and people, checking and supervising vehicles, and stamping permits. This increases administrative procedures, which is not consistent with the policy of reform, and increases customs clearance time.

In addition, according to the provisions of the Ordinance 23/2004/PL-UBTVQH11 on criminal investigation, the Customs and Border Guard is competent to investigate illegal acts of buying, selling and transporting firecrackers at the border.

But now, according to the Article 33, Law on Organization of Criminal Investigation Agencies (effective from January 1, 2018), only Customs authorities are competent to investigate and prosecute cases on trading of firecrackers across the border. In fact at some border gates, when the Customs forces detect goods such as weapons, explosives, artillery and support toolsthe border forces requestto transfer to the Border Guard Army for handling due to national security and defense.

In order to avoid overlapping in the implementation of this regulation, the Anti-Smuggling Investigation Department proposed that the competent authorities specify the list of goods in the field of national security under the handling of the Border Guard.

By Nguyen Quoc/ KieuOanh