Key Benefits:
DECREE NO. 5,237 OF October 8, 2004
Promults the Agreement between the Government of the Federative Republic of Brazil and the Government of the Russian Federation to Prevention, Research and Combating Customs Infractions, concluded in Brasilia, on December 12, 2001.
THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that confers it on art. 84, inciso IV, of the Constitution, and
Considering that the Government of the Federative Republic of Brazil and the Government of the Russian Federation celebrated in Brasilia on December 12, 2001, a Mutual Assistance Agreement for Prevention, Investigation and Combating Customs Infractions;
Whereas the National Congress has approved this Agreement through Legislative Decree No. 61 of January 27, 2004;
Considering that the Agreement entered into force on , pursuant to paragraph 1º of its Article 17;
DECRETA:
Art. 1º The Agreement on Mutual Assistance between the Government of the Federative Republic of Brazil and the Government of the Russian Federation for the Prevention, Research and Combating Customs Infractions, concluded in Brasilia, on December 12, 2001, apensed by copy to the present Decree, will be executed and fulfilled so entirely as in it it contains.
Art. 2º Are subject to the approval of the National Congress any acts that may result in revision of the said Agreement, as well as any supplementary adjustments that, in the terms of the art. 49, inciso I, of the Constitution, carries gravy charges or commitments to the national heritage.
Art. 3º This Decree takes effect on the date of its publication.
Brasilia, 08 of October 2004; 183º of Independence and 116º of the Republic.
LUIZ INACIO LULA DA SILVA
Celso Luiz Nunes Amorim
The Government of the Federative Republic of Brazil
e
The Government of the Russian Federation
(henceforth called the "Parties"),
Considering that the infractions to the customs legislation are detrimental to its economic, commercial, fiscal, social and cultural interests;
Whereas it is essential to ensure the correct application of control, constraint, or prohibition measures, and the exact perception of rights customs and other fees charged in exporting and importing goods;
Considering that the illicit trafficking of narcotics and psychotropic substances is a serious threat to public health and to the society;
In view of the Recommendation of the Council for Customs Cooperation-World Organisation of the Aduanas-on Mutual Administrative Assistance, of December 5, 1953;
With a view to, equally, the International Conventions formulating prohibitions, restrictions and special control measures with respect to specific goods;
Wake up the following:
ARTICLE 1
Definition of the terms
For the purposes of this Agreement, it is understood by:
1. "Customs Legislation": the set of legal, regulatory and administrative provisions that the customs administrations are in charge of enforcing the export, import and transit of goods, or the placing of goods under customs arrangements, the perception of customs duties or other duties or fees collected by customs administrations, as well as the measures of prohibition, restriction or control for export or import of goods.
2. "Customs Administration":
a) for the Government of the Federative Republic of Brazil: the General Coordinator of the Customs System of the Registry of the Federal Revenue Office at the Ministry of Finance;
b) for the Government of the Federation of Russia: the State Committee of the Aduanas.
3. "Customs infringement": any transgression or attempt to transgress from customs legislation.
4. "Person": means any physical or legal person.
5. "Entorpective Products and Psychotropic Substances": the products shown in the Lists of the Single Convention of the United Nations Organization on Entorsinents of March 30, 1961, of the Single Convention of the United Nations Organization concerning the Psychotropic Substances, of February 21, 1971, as well as the chemical substances shown in tables I and II of the Annex to the United Nations Convention against Illicit Trafficking in Narcotropic Substances and Psychotropic Substances, 20 of December 1988.
6. "Information": any and all data, document, report, certified copy relating to these or any other communications.
7. "Intelligence": information processed or analyzed so as to provide relevant particularities of a customs infraction.
8. "Administration Required": the Customs Administration to which a request for assistance is addressed.
9. "Applicant Administration": the Customs Administration that formulates a request for assistance.
ARTICLE 2
Field of Action of the Agreement
1. The Customs Administrations provide mutual assistance in the conditions set out by this Agreement, with a view to ensuring the correct application of customs legislation and preventing, investigating and countering customs infractions.
2. The assistance provided for in the preceding paragraph shall not be aimed at the perception, by the Customs Administration of the State of a Party, of customs duties, taxes, fees, fines and other amounts due to the State Customs Administration of the other Party.
3. At the request of the requesting Administration, the requested Administration shall notify interested persons resident in the territory of its State any procedures, decisions and other documents regarding the application of the customs legislation in force in the territory of the State of the Administration required and in the limits of the competence of that Administration.
ARTICLE 3
Exchange of Information
1. The Customs Administrations will exchange, on their own initiative or on request, the information that may be useful to ensure the correct application of customs legislation, as far as:
a) to the perception, by the Customs Administrations, customs duties and fees, as well as the correct assessment of the customs value of the goods and their tariff classification;
b) regarding the prohibition, contingency measures, of preferential taxation or exemption referring to the import, export or transit of goods;
c) to the application of the rules regarding the origin of the goods;
d) to the prevention and repression of customs and the illicit trafficking of narcotics and psychotropic substances.
2. When the requested Administration does not dispose of the requested information, it will take the necessary measures to obtaining such information.
ARTICLE 4
Fight against the Illicit Traffic of Goods
Of Singular Importance
Each Customs Administration will provide, on its own initiative or on request and without delay, any information that it disposes regarding:
a) operations on which it has been verified or suspected to be of fraudulent character, in relation to the respective customs legislation, in particular all wrongdoing verified on the occasion of a control in export, import or circulation of goods;
b) the new means or methods used for the practice of infractions to their respective customs legislation;
c) the categories of goods known as being the object of a fraudulent trafficking in import, export or transit, such as weapons, ammunition, explosives, narcotic products and psychotropic substances, objects of art or antiques having great artistic, historical or archaeological value for one of the Parties, toxic or hazardous products for public health, goods heavily taxed or subject to quantitative restrictions;
d) people suspected of committing or habitually infractions to the customs legislation;
and) the means of transport suspected of use for customs infractions practice;
f) the new techniques to combat customs infractions effectively proven.
ARTICLE 5
Forma and Order Content
1. Each of the Customs Administrations shall provide, on request in writing or, in an emergency, by a verbal request that should be confirmed in writing, as soon as possible, all information:
a) concerning excerpts from customs documents referring to movements of goods between the two states that are or may be the object of fraudulent trafficking, especially those contemplated in the inciso "c" of Article 4º of this Agreement, concerning the legislation customs applied by the requesting Administration, as much as possible in the form of duly certified or certified copies of the said documents or by computerized means. In the latter case, all the information necessary for the processing of the documents will be provided on request;
b) that may serve to reveal infractions to the customs legislation applied by the requesting Administration.
2. These written requests or confirmations shall provide the following information:
-the name and the office of the requesting customs authority;
-the nature of the ongoing procedure;
-the objective and the reason for the application;
-the identification of the implicated parties (name, date and place of birth for the physical persons, social reason for the people legal) and its address (registered office for legal persons);
-a succinct report of the case, as well as the legal elements to it concerning.
ARTICLE 6
Surveillance on People, Goods
and Means
On request, the Administration required to provide information and intelligences and shall exercise special vigilance on:
a) persons from whom the applicant Administration is aware that they have committed infractions or suspected of coming to comet them, especially those in moving input and exit from the customs territory of the State of the requested Party;
b) the movement of goods which the requesting Administration suspects are the object of the practice of infringement to the customs legislation by it applied;
c) the places of warehouse of goods that the requesting Administration suspects are intended for the illegal importation into the territory of their State;
d) the means of transport that the requesting Administration suspects are used for the committing of customs infractions in the territory of the state of one or the other of the Parties;
and) the shares which may be linked to the illicit trafficking of narcotics and psychotropic substances.
ARTICLE 7
Delivery under Surveillance
1. The Customs Administrations may, by mutual agreement, on a case-by-case manner, and after having defined the financial and practical arrangements, use the method of delivery under surveillance for the narcotic products and psychotropic substances, in a manner identifying the persons implicated in customs infractions.
2. Illegal consignments whose delivery agrees to take place under control may, by mutual agreement, be intercepted or permitted to continue their forward, such that they present themselves, or after the narcotics or psychotropic substances have been removed or replaced completely or partially by other products.
ARTICLE 8
Derogations
1. The assistance provided for in this Agreement may be refused in whole or in part when it may be detrimental to the sovereignty, public order or other fundamental interests of one of the two Parties, or that it may imply breach of secrecy industrial, commercial or professional.
2. When the applicant Administration submits an application that it itself could not meet, if submitted by the requested Administration, it should state such a circumstance in the your request. In such a case, the fulfilment of this request will be at the discretion of the Administration required.
3. The assistance may be delayed by the Administration required when it may interfere with an ongoing investigation, demand, or legal procedure. In such a case, the requested Administration shall consult with the requesting Administration to determine whether the assistance may be given under the reservation of being met the conditions imposed by the Administration required.
4. The denied or deferred assistance should be justified.
ARTICLE 9
Investigation
1. With a view to facilitating research in the territory of their State, each Customs Administration proceeds, at the request of the other Customs Administration, to investigations concerning the operations they present or are liable to present a character fraudulent in relation to the customs legislation in force in the territory of the State of the applicant Administration and will effectuate such investigations under the same conditions as if it acted on its own or at the request of other authorities of his State.
2. The requested Administration will be able to authorize, during the research work, the presence of officials of the applicant Administration. In this case, employees will be unable to be armed nor coated in their uniforms.
ARTICLE 10
Establishment of Relations Direct
The respective Customs Administrations can establish direct relations, among their services tasked with preventing, investigating, or repressing the practice of customs infractions with views to the exchange of information. In this case, they will present lists of specially designated employees for this purpose.
ARTICLE 11
Confidentiality
1. The information received on the basis of the administrative assistance provided for in this Agreement shall be used solely for the purposes set out therein. Any other use of such information will only be possible if the Customs Administration that has provided them expressly authorizes in writing its use for other purposes.
2. The information, communications and documents obtained by a Customs Administration pursuant to this Agreement should be deemed to be confidential and benefit from the same guarantees in terms of protection that those granted by the legislation applied by that Administration Customs to your own information of the same nature.
ARTICLE 12
Use of Information and Documents
1. The Customs Administrations may make use, in the title of evidence before the Courts, and in the verbal procedures, reports and testimonies, of the documents and information received under the conditions laid down in this Agreement.
2. The value of proof assigned to such documents and information will be determined by the legislation applied by the requesting Administration.
ARTICLE 13
Peritos and Witnesses
1. At the request of a court or an authority of one of the Parties, the State Customs Administration of the other Party may authorise its officials to present themselves in the quality of witnesses or experts before the court or authority applicant.
2. These employees, authorized by their respective Administrations, may testify about the enquiries by them carried out in the exercise of their duties.
3. The turnout request is expected to express exactly the case to which it relates and to which title the employee will be interrogated.
4. Expenses for displacement as well as daily and cost aid paid to experts and witnesses, as well as expenses with translators and interpreters will be borne by the applicant Administration.
ARTICLE 14
Costs
Each of the Parties resigns, in favor of the other Party, to any claim of reimbursement of expenses incurred in the implementation of this Agreement, save in regard to the expenditure referred to in Article 13.
ARTICLE 15
Territorial application of the Agreement
This Agreement shall apply in the customs territories of the Federative Republic of Brazil and of the Russian Federation such as defined by their legislations.
ARTICLE 16
Implementation of the Agreement
1. The modalities and concrete measures for the application of certain devices of this Agreement may be established with correctness, where necessary, by way of agreement between the Customs Administrations.
2. With the purpose of facilitating the application of this Agreement, the Customs Administrations may establish, by way of agreement, measures of mutual technical cooperation.
3. A Joint Committee composed of representatives of the two Customs Administrations shall be set up, tasked with examining the questions concerning the application of this Agreement.
4. The Joint Committee shall meet, in case of necessity, alternately in the territory of the State of each of the Parties.
5. The divergences for which no solutions are found will be resolved by diplomatic way.
ARTICLE 17
Entry into Vigor and Denpronunciation
1. This Agreement shall come into force on the first day of the second month after the last diplomatic note by which a Party shall communicate to the other the fulfilment of the respective internal legal formalities necessary for its entry into force.
2. This Agreement shall remain in force by unlimited duration unless one of the Parties denouncing it at any time by means of written notification to the other by diplomatic means. The complaint will take effect 180 (one hundred and eighty) days from the date of the respective notification.
3. This Agreement may be modified by diplomatic and mutual agreement between the Parties; the amendments shall enter into force in accordance with the provisions of paragraph 1 of this Article.
Done in Brasília, in 12 of december 2001, in two original exemplars, in the Portuguese, Russian and French languages, being all texts being equally authentic. In the event of a divergence of interpretation, the text in French will prevail.
______________________________
BY THE GOVERNMENT OF THE REPUBLIC
FEDERATIVE DO BRASIL
Celso Lafer
Minister of State for Foreign Relations
______________________________
BY THE FEDERATION GOVERNMENT
DA RUSSIA
Mikhail Valentinovitch Vanin
Chairman of the State Customs Committee
