International Treaties on Legal Assistance in Law Enforcement Activities of the Customs Authorities of the Russian Federation

Ovchinnikov Sergei Nikolaevich ORCID: 0000-0002-5253-4587 PhD in Law Associate Professor, Department of Theory and History of State and Law, Far Eastern Federal University, Vladivostok 690922, Russia, Primorskii krai, g. Vladivostok, ul. Ostrov Russkii, Pos., 10 sovchinn@yandex.ru Other publications by this author

Atamanchuk Vadim Valentinovich Student, Law School, Far Eastern Federal University 690922, Russia, Primorskii krai, g. G. Vladivostok,, ul. O. Russkii, P., 10 atamanchuk.vv@students.dvfu.ru Other publications by this author

One of the main activities of the customs authorities is law enforcement. The Customs Code of the Eurasian Economic Union and the Federal Law "On Customs Regulation in the Russian Federation and on Amendments to Certain Legislative Acts of the Russian Federation," among the tasks and functions of customs authorities is to distinguish the protection of national security, prevention, detection and suppression of crimes and administrative offenses, cooperation with customs and other competent authorities of foreign states, and international organizations that deal with customs issues. The National Security Strategy of the Russian Federation sets the task of developing international cooperation in countering terrorism, extremism, corruption, illegal production and trafficking of narcotic drugs and psychotropic substances, illegal migration, cross-border crime, and the customs authorities of the Russian Federation are actively involved in solving this task.

International customs cooperation in the law enforcement sphere can be defined as the interaction of states, international organizations, integration associations, and customs services of various countries in order to provide mutual assistance in the prevention and suppression of offenses.

In the framework of law enforcement activities, the Federal Customs Service of the Russian Federation actively interacts with the customs services of foreign states – in 2020, the share of cases initiated by the Federal Customs Service of the Russian Federation according to information received from foreign colleagues in the framework of legal assistance amounted to 1.9% of the total number of criminal cases initiated (40 out of 2,067) and 0.05% of the total number of initiated cases of administrative offenses (58 out of 114,547), and the share of cases initiated as a result of 13 customs special operations involving foreign customs services amounted to 10.1% of the total number of criminal cases initiated (209 out of 2,067) and 0.05% of cases of administrative offenses (55 out of 114,547) ^{[1, p. 118]}. In total, the Federal Customs Service of the Russian Federation cooperates with the customs services of 104 countries of the world.

International customs cooperation in the law enforcement sphere requires proper legal regulation, and a reliable international legal framework. The report on the results and main activities of the Federal Customs Service of Russia in 2020 notes that "as of the end of 2020, there are 328 international treaties and memoranda concluded with 71 foreign countries" ^{[2, p. 13]}. International customs cooperation is carried out at several levels depending on the number of participants: general, regional and bilateral ^{[3, p. 93]}. In the system of international legal acts defining customs cooperation in the law enforcement sphere, several levels of international regulation can also be distinguished.

1. Regulation of international cooperation of customs authorities in the field of law enforcement by international treaties prepared by universal international organizations, the United Nations and the World Customs Organization (WCO)

Among these agreements, the International Convention on Mutual Administrative Assistance in the Prevention, Investigation and Suppression of Customs Offenses (the Nairobi Convention), developed by the WCO, can be put in the first place ^[4]. The only annex of the Nairobi Convention to which the Russian Federation has joined is Annex X – “Assistance in combating the smuggling of narcotic drugs and psychotropic substances.” M. S. Nagornaya and E. S. Yakimenko cite an extensive list of international conventions ratified by the Russian Federation in order to fulfill international obligations and suppress smuggling ^{[5, p. 48]}; however, not all of the above directly concerns customs offenses. For example, the International Convention on Simplification and Harmonization of Customs Procedures (Kyoto Convention) in Chapter 2 of the General Annex defines mutual administrative assistance as "actions performed by one customs administration on behalf of another customs administration or jointly with it for the proper application of customs legislation and for the prevention, investigation and suppression of customs offenses" ^{[6, p. 48]}, but nothing more is said about this in the Kyoto Convention. Special Appendix H "Offences" establishes the relevant standards of national customs legislation and practice.

2. Implementation of international cooperation of customs authorities in the law enforcement sphere within the framework of regional international associations: the Eurasian Economic Union, the Shanghai Cooperation Organization, the BRICS countries

At this level, it should be noted, first of all, the Agreement on Legal Assistance and Cooperation of the Customs Authorities of the Member States of the Customs Union in Criminal Cases and Cases of Administrative Offenses ^[7]. The agreement between the governments of the Shanghai Cooperation Organization member states on cooperation and mutual assistance in customs matters (the Tashkent Agreement) assumes a lesser degree of interaction ^[8], especially since the Russian Federation has many bilateral agreements on customs cooperation with each of the member states of the Tashkent Agreement.

3. Regulation of international cooperation of customs authorities in the law enforcement sphere within the framework of concluded bilateral agreements on legal assistance

Similar agreements have been concluded by the Russian Federation with 78 States, while 58 of them are with states with which cooperation at the level of international organizations is not carried out. Moreover, this group of agreements is heterogeneous. Within this group, two varieties can be distinguished:

i. Agreements on mutual assistance in customs matters

This form of agreements is a priority for the application of the Federal Customs Service of the Russian Federation; however, these agreements have been concluded with only 58 states, of which 39 have no international legal regulation at the level of international interstate treaties.

ii. Agreements on mutual legal assistance in criminal and administrative matters

These agreements may be applied in cases where there is no regulation by a special agreement on mutual assistance in customs matters. This situation is relevant for international relations with 13 States.

A detailed summary of the current agreements of the Russian Federation with foreign states is presented in the table below.

The table is based on the materials of the SPS ConsultantPlus, the websites of the FCS of Russia and the WCO.

Regardless of the level of regulation, international cooperation of the customs authorities of the Russian Federation is carried out within the framework of the forms of legal assistance provided for by the relevant agreement. The forms of assistance show how cooperation is directly carried out. The literature notes that "the allocation of specific forms of interaction directly affects the implementation of international interdepartmental agreements" ^{[9, p. 15]}. The system of legal assistance of customs authorities in law enforcement is represented by the following forms:

1. Exchange of information on persons and vehicles involved in or suspected of customs offenses, methods of concealing contraband

This form can be implemented either upon request from the customs authority of one state to the customs authority of another, or on the customs authority's own initiative. This form of legal assistance is the most common, and occurs at all levels of regulation of international cooperation without exception.

2. Surveillance of persons, vehicles involved or suspected of customs offenses

This form of legal assistance is implemented exclusively upon request, and is provided for by the Agreement on Legal Assistance of the Customs Union member States, Annex X of the Nairobi Convention, the Tashkent Agreement of the Shanghai Cooperation Organization member states and 46 out of 56 (79%) agreements on mutual legal assistance in customs matters. Due to its specificity, it is not provided for by agreements on mutual legal assistance in criminal and administrative cases.

3. Controlled delivery

This form of legal assistance is carried out by mutual consent of the States and is implemented in accordance with the national legislation of the States participating in the controlled delivery. Such a form is provided for by the Tashkent Agreement and 49 out of 56 (87.5%) agreements on mutual legal assistance in customs matters. Due to its specificity, it is not provided for by agreements on mutual legal assistance in criminal and administrative cases.

4. Providing evidence

This form of legal assistance is provided exclusively upon request, and it provides the requesting party with acts, documents and witness statements for their further use in the investigation of a criminal case or a case of administrative offenses. Such a form is provided for by the Agreement on Legal Assistance of the member States of the Customs Union, the Tashkent Agreement, 53 out of 56 (94.6%) agreements on mutual legal assistance in customs matters and all agreements on mutual legal assistance in criminal and administrative matters.

5. Conducting an investigation by the customs authority of the country to which the request is sent, on its territory.

This form of legal assistance is provided exclusively upon request, provided for by the Agreement on Legal Assistance of the Member States of the Customs Union, Annex X of the Nairobi Convention, the Tashkent Agreement, 51 out of 56 (91%) the agreement on mutual legal assistance in customs matters and all agreements on mutual legal assistance in criminal and administrative matters.

6. Participation of customs officials as experts, witnesses in the investigation of cases on the territory of another state

This form of legal assistance is provided exclusively upon request, provided for by the Agreement on Legal Assistance of the Member States of the Customs Union, Annex X of the Nairobi Convention, the Tashkent Agreement and 49 out of 56 (87.5%) agreements on mutual legal assistance in customs matters and all agreements on mutual legal assistance in criminal and administrative matters.

Analyzing the system of international cooperation of customs authorities in the law enforcement sphere presented in international legislation, it is possible to draw conclusions about the existence of a serious problem expressed in the heterogeneity of international legal regulation of this cooperation. Full-fledged and universal cooperation of customs authorities in the law enforcement sphere is possible only within the framework of specialized agreements on mutual legal assistance in customs matters, the Tashkent Agreement and the Agreement of the member States of the Customs Union on Mutual Legal Assistance – and similar relations have been established in the Russian Federation with only 62 states out of 104 with which cooperation is possible under other agreements. Annex X of the Nairobi Convention is limited exclusively to cooperation in combating the smuggling of narcotic drugs and psychotropic substances, and universal treaties on legal assistance do not provide all the tools used by customs authorities under the above-mentioned treaties.

In relation to other federal executive authorities (Ministry of Internal Affairs, Ministry of Justice) The Government of the Russian Federation approved model cooperation agreements with the competent authorities of foreign states. A similar model agreement for the Federal Customs Service of Russia has not been adopted, although the expediency and necessity of such a model agreement was justified ^{[9, p. 17]}. Only a Model draft Agreement between the Federal Customs Service of Russia and the Customs Service (authorized body) of a state that is not a member of the Eurasian Economic Union on the prevention, detection and suppression of the commission of dubious financial transactions by participants in foreign economic activity was approved operations ^[10]. This act, among the forms of interaction, offers the exchange of information and joint analytical work.

When considering the regulation of international cooperation of customs authorities in the law enforcement sphere by international treaties, the question arises about the effectiveness of these treaties. Their actual effect depends on various political and other factors, in particular, on the state of relations with a particular state. I. A. Gokinaeva and A.V. Agapova noted the lack of indicators of the effectiveness of customs authorities in the field of international customs cooperation. They proposed to assess the effectiveness of activities in terms of sending requests to foreign countries such as an indicator of the effectiveness of activities as "The proportion of requests to foreign countries, the response to which confirms the stated information in the total number of requests sent." Moreover, the information stated by the declarant must be confirmed ^[11]. If we are talking about law enforcement activities, on the contrary, non-confirmation of the stated information may indicate a customs offense and the effectiveness of the request. Simple arithmetic of this kind is unlikely to work on the efficiency of the activity.

It seems that the continuation of the policy of concluding specialized agreements on mutual assistance in customs matters will contribute to the improvement of international customs cooperation of the Russian Federation, while special attention should be paid to the establishment of agreements with those states with which an agreement on mutual legal assistance in criminal and administrative matters has already been concluded, but no agreement on mutual assistance in customs matters has been concluded – This situation is relevant for the relations of the Russian Federation with 22 states.