Facts
The case concerns a complainant who in February 1983 declared a larger consignment of art objects as duty-free household effects upon importation. However, the customs inspection revealed that not all objects had been declared and that some of the paintings bore sales tags from the complainant's former Paris gallery. The customs office therefore rejected the application for duty-free importation and referred the case to the investigation service. A final protocol dated 26 October 1983 determined the goods value at CHF 245,036 and the owed value-added tax at CHF 22,788.34. The Directorate General of Customs subsequently fined the complainant CHF 11,390 in a penalty order dated 28 October 1985.
The complainant requested a trial before the criminal court. However, the single judge at the District Court of Zurich did not allow the indictment, as there was no final decision on the complainant's obligation to pay duties. The High Court overturned this decision and referred the matter back for re-examination. The single judge then allowed the indictment and convicted the complainant of negligent violation.
Considerations
The Federal Supreme Court states that although there was no final decision on the complainant's obligation to pay duties under Art. 123 CustO, as the goods were in a customs warehouse and thus no obligation to pay value-added tax existed, the criminal proceedings were not contrary to federal law, as Art. 73(1) second sentence ACLA is incomplete in such cases.
The court explains that in the absence of a decision on the obligation to pay duties under…