Таможня и Наука

Sergey Moser

Aspirant of the Russian customs academy

 

Customs bulletin. – 2008. – № 9-10 (111-112).

Introduction

1. The competence of Transdniestria to carry out separately customs procedures

1.1. Problematic of the issue

1.2. Transdniestria and international obligations of Moldova

1.3. The concept of customs seal as an attribute of customs system

2. Factors caused changing of regime of customs activity of Transdniestria

2.1. Economic crisis in the Republic of Moldova in 2001 on the eve of introduction of new customs seals

2.2. Moldavian position

2.3 Withdrawal from circulation of customs seals of 1996

3. Restriction of foreign trade transactions of Transdniestria in connection with withdrawal from circulation of customs seals of 1996: international-legal aspect

3.1 Experts’ conclusions.

3.2 Legal assessment in the context on international law.

Conclusion

 

Introduction

Economic confrontation of the Republic of Moldova and Transdniestria numbers more than one year, but methods and means of economic suppression, implemented in relation to Transdniestrian region are characterized by their diversity and comprehensiveness. The matter of changing of the regime of customs activity of Transdniestrian Moldavian Republic, regarding artificial restriction of its foreign trade transactions, has been clearly emerged in 2001, when customs service of the Republic of Moldova introduced new forms of customs documents and seals.^[1]

In the framework of the held discussions at different levels concerning the specified topic, including official meetings of high officials of the sides, mediators in Transdniestrian conflict settlement, and experts, political fights often touch upon such categories as “the right of Transnistria to carry out separately foreign trade transactions” and “customs seals” of 1996, that the Republic of Moldova withdrew from circulation, disabled Transdniestria to clear independently Transdniestrian goods with subsequent exportation/importation.

The matter regarding competence of Transdniestrian region to carry out separately foreign trade transactions is clear for experts and specialists of international economic law, while the research of problematic of customs seals of Transdniestria for scientific audience is limited to separate fragments of information non-compliant with norms of international customs and commercial law, national legislations of the Republic of Moldova and Transdniestria achieved agreements of the sides in customs area, archival materials of customs services of Transdniestrian Moldavian Republic and the Republic of Moldova, objective reality.

In this connection it would be reasonable to analyze the available facts, touch upon some details of the matter of customs seals, emphasizing norms of international customs and commercial law, and practical aspect of the matter.

The first thing is trying to understand, how to a piece of plastic with rubberized overlay, named customs seal, in literal sense was given the priority over the international law and international practice.

And finally, no less interesting is to consider how the substitution of concepts has occurred – introduction of economic sanctions against Transdniestria for more “democratic” – withdrawal from circulation of customs identification and establishment of order at the borders of the Republic of Moldova.

 

The competence of Transdniestria to carry out separately customs procedures

1.1. Problematic of the issue

Let’s remind that before the Moscow Memorandum On the Bases for Normalization of Relations between the Republic of Moldova and Transdniestria of 1997 was signed, where the right of Transdniestria “to
unilaterally establish and maintain international contacts in the economic sphere”, was fixed, ^[2] the fundamental customs agreement in Moldavian-Transdniestrian conflict settlement in customs area was and currently remains the Protocol Decision on settlement of problems arisen in activity of Customs Services of Republic of Moldova and Transdnistria of 07.02.1996.

In accordance with the Protocol Decision of 07.02.1996 “customs clearance of cargoes transported from Transdnistria shall be fulfilled by customs bodies of Transdnistrian region from 10 March 1996 using customs seals and stamps of new standard – “the Republic of Moldova. Transdniestria.Tiraspol customs house” – on Moldavian and Russian languages with the right of customs clearance of all cargoes from Transdistria.”^[3]

In pursuance of this norm the Protocol Decision of 11.03.1996 coordinates the forms of customs seals and stamps for processing customs documents by customs bodies of Transdniestria.^[4] At a later date in the framework of Moldavian-Transdniestrian working meetings to review the results of implementation of the Protocol Decision of 07.02.1996 this provision was recognized to be fulfilled in whole.^[5]

For purposes of the objective analysis it should be noted that Moldavian side represented by Customs Service of the Republic of Moldova “in cooperation with customs bodies of Transdniestria was governed implicitly by the Protocol Decision of 07.02.1996.^[6]”

According to the Director of Department for Customs Control of the Republic of Moldova “since 1995 the Department for Customs Control of the Republic of Moldova has regularly held working meeting with representatives of Customs Service of Transdniestria, where the mechanism for cooperation has been being elaborated. Concrete measures with regard to struggle against smuggling and customs offences were determined and implemented. The information exchange on cargoes destined for the sides was arranged, concrete actions were taken in relation to transmission of escorted goods by escorting groups to each other”.^[7]

We will provide some more facts stated in letter of the Director General of Department for Customs Control of the Republic of Moldova Andrey Stratan of 01.06.2000 №2280 for hearing by working group on cooperation in customs affairs at joint meeting of the Parliament Commission on 27.06.2000. Between customs bodies of Transdniestria and the Republic of Moldova “the matters of operation of TIR system throughout the whole territory of Moldova (including Transdniestria – author’s note), data exchange on goods destined for the sides, escorting and transmitting goods intended for other side, establishment of single information system concerning goods movement based on confirmation notes, issued by appropriate customs bodies”.

Confirming the absence of any violations of international-legal obligations by Transdniestrian customs officials, Customs Service of the Republic of Moldova has noted that “being an authorized body on implementation of the TIR Convention, Department for Customs Control of the Republic of Moldova has ensured outright fulfillment of the Convention requirements throughout the whole territory of Moldova (including Transdniestria”(!).^[8]

In this letter the Head of the Department for Customs Control of the Republic of Moldova stated the fact of “entering into force of the Customs Code of Transdniestrian Moldavian Republic” ^[9] in 2000 and supposed to be reasonable to speed up consideration and approval in the RM Parliament of Customs Code of the Republic of Moldova, adopted in first reading in 1999.”

In other words, Customs Service of the Republic of Moldova confirms the following facts:

– the obligation of the Department for Customs Control of the Republic of Moldova to implement provisions of the Protocol Decision on settlement of problems arisen in activity of Customs Services of Republic of Moldova and Transdnistria of 07.02.1996;

– cooperation between the Department for Customs Control of the Republic of Moldova and the State Customs Committee of Transdniestria in the framework of the Protocol Decision of 07.02.1996;

– joint work of the Department for Customs Control of the Republic of Moldova and the State Customs Committee of Transdniestria in struggle against smuggling and customs offences;

– joint work of customs escorting groups of the Department for Customs Control of the Republic of Moldova and the State Customs Committee of Transdniestria;

– mutual data exchange on foreign trade transactions;

– absence of any problems regarding fulfillment of international obligations of the Republic of Moldova in the framework of Customs Convention on the international transport of goods under cover of TIR carnets when movement of goods through the territory of Transdniestrian Moldavian Republic;

– existence of the Customs Code of Transdniestrian Moldavian Republic, regulating legal relations in the field of organization of customs system in Transdniestria.

In spite of this fact in 2001 the Republic of Moldova contrary to previously achieved agreements has taken unilateral actions aimed at establishment of artificial obstacles with regard to export/import transactions of Transdniestria. Moldavian Republic. As it was stated above, the Decision of the Government of the Republic of Moldova №904 of 30.08.2001 prescribed to Customs Department of Moldova till 01.09.2001 to put into operation new forms of customs documents and seals and to ensure their implementation in compliance with current legislation and international agreements, one of the Contracting Parties of which was the Republic of Moldova; to withdraw from circulation all forms of customs documents and seals used before 1 September 2001.^[10]

As the result, on 01.09.2001 the Department for Customs Control of the Republic of Moldova has put into operation new customs identification, having notified on 30.08.2001 carriers, CIS countries and Transdniestria of invalidity of old customs identification, including those used by Transdniestrian customs bodies.^[11]

Motivation for introduction of new Moldavian customs identification and simultaneous withdrawal of the previous one came to be allegedly the WTO requirement.^[12]

Transdniestrian side considers introduction of new customs seals to be destructive actions aimed at blocking foreign trade activity of economic operators of Transdniestria. ^[13]

 

1.2. Transdniestria and international obligations of Moldova

Undoubtedly, fulfillment of international obligations by the state in the system of international legal relations is an important condition, characterized its negotiation capability and perspectives of further implementation of external policy.

Within the limits of establishing legal relations between Transdniestria and the Republic of Moldova in this context the acceptable solution was found; it allowed before the final determination of international legal status of Transdniestria to ensure the observance of obligations by the Republic of Moldova before the international community taking into consideration interests of Transdnistrian region. Particularly, in accordance with the Protocol of the meeting of delegations of the Republic of Moldova and Transdniestria on the problem of coordination of actions in the area of trade-economic and scientific and technical activity” of 13.07.1999 Transdniestria was authorized “to ensure implementation of agreements and other acts concluded between the Republic of Moldova and other states, international, regional and other organizations in trade-economic and scientific and technical sphere, concerned the interests of Transdniestria”.^[14] This rule was approved by Presidents of Transdniestria and the Republic of Moldova 13.07.1999.

Thus, Transdniestria was empowered to regulate in its territory administrative-legal relations in customs area complicated by international element taking into account liability of the Republic of Moldova to international community.

In this context it makes sense to provide the following example. In relation to customs seals and customs procedures as well as ensuring of fulfillment of international obligations by Transdniestrian side, the fact of conclusion of the Agreement on ensuring information exchange on TIR carnets produced in customs of destination in the territory of Transdniestria of 19.06.1998 between the State Customs Committee of Transdniestria and International Road Transport Carriers’ Association (AITA).^[15]

For information: AITA is a non-governmental, non-commercial, independent, professional organization uniting more than 600 transport companies. The Association is a member of International Road Transport Union (IRU, Zheneva), FIA (France) and FIATA (Zurich). In the territory of the Republic of Moldova AITA is a guarantee association in the framework of the TIR Convention of 1975.

For purposes of operational transmission to International Road Transport Union (IRU, Zheneva) of information concerning TIR carnets cleared in customs of destination in the territory of Transdniestria, the State Customs Committee of Transdniestria within the lin\mits of the achieved agreement of 19.06.1998 have collected from regional customs houses and transmitted operationally to AITA such information as TIR carnet number, date and number specified in customs documents, name of customs of destination, date and number of clearance^[16], other information.

In its turn, in accordance with the agreement International Road Transport Carriers’ Association to Moldova has ensured on continuing basis an access of the State Customs Committee of Transdniestria to its data bases on TIR carnets and has provided other information within the limits of the said agreement. Thus, Transdniestrian side has ensured the fulfillment of international obligations in the area of transport of goods under cover of TIR carnets. Any legal complaints from AITA against customs bodies of Transdniestria have not taken place. Bilateral cooperation was effective and was one of the forms of customs control in Transdniestrian region.

It should be noted that the analogous agreements were concluded on parity basis between this Association and Customs Service of the Republic of Moldova.

In the context of the aforesaid one should not wonder at facts stated in the aforementioned letter of Department for Customs Control of 01.06.2000 №2280 in relation to absolute fulfillment of the TIR Convention requirements in the territory of Transdniestria.

 

1.3.       The concept of customs seal as an attribute of customs system

As the object of the present research includes a set of legal relations, connected with problematic of withdrawal of customs identification of Transdniestria, namely — customs seals of 1996, let’s give the concept of “customs seal” and explain its functional meaning.

The concept “customs seal” is understood as one of the means of customs identification and certification of customs documents.

Besides customs seals, the category of means of customs identification comprises customs stamps and other means attached to vehicles, premises, containers and other objects, containing goods subject to customs control.

The concept “customs seal” is included in group of means of identification, which comprises stamps, seals, numeral, letter or other marking on goods or vehicles; making identification marks; drawing samples of goods; detailed description of goods; drawing, size images; photos, illustrations; video information; electronic information; information specified in shipping, transport and in other documents, used for customs purposes.^[17]

Customs seals, stamps are used by officials of customs bodies when clearing goods and vehicles. With their help distinctive signs are put on goods,documents, cargo compartments of transport or premises for goods storage, they allow avoiding falsification of data contained in documents, substitution of documents, loss of goods, and determining definitely the fact of goods to be under customs control of the fact of customs clearance of carrying out of the clearance by one customs body or another.

The repeated means of customs identification comprise personal numbered seal of customs official, stamp “Release allowed” and control stamp.

The use of repeated means of identification, including customs seals, is in the fact of their attachment on documents, other objects, stipulated by customs legislation and regulations.^[18]

Documents requiring implementation by customs body of means of customs identifications are transport, shipping, commercial and other documents accompanying goods on heir movement under customs control; delivery control documents; TIR carnet; international consignment note, invoice; specifications, lists, packing lists containing information on weight, quantity, description, value, and goods nomenclature codes according to CIS Commodities Nomenclature of Foreign Economic Activity; acts of customs examination and inspection; acts of responsible storage of goods; acts of customs escorting; goods declaration and declaration of customs value.

The analogous norms exist in Russian legislation. In particular, for purposes of documents protection and prevention of falsification cases, on the completed forms customs officials of Russia attach seals and stamps applied in customs clearance and customs control.^[19]

As regards cases of attachment of personal numbered seals and stamps of customs clearance, as a rule, they are specified by national methods. Particularly, the Russian example can be made: the letter of the State Customs Committee of the Russian Federation of 15.04.2003 №01-06/15919 “On application of personal numbered seal and stamps of customs clearance”.^[20]

Summarizing the aforesaid, one can note that customs seal is the means of customs identification and is used for control over customs procedures, i.e. actions carried out by customs bodies in pursuance of national customs legislation. It should be emphasized that when fulfilling customs procedures customs collects customs payments which are transferred to the state budget. In case of the Republic of Moldova customs payments account for 77% of the revenue of national budget, ^[21] — a sum exceeding twice the analogous indices in developed countries, focusing attention on development of production, sphere of services, agriculture.

Thus the issue on customs seals comes not only to physical withdrawal fron circulation of customs seals anв stamps of Transdniestria, provided for the region in 1996 in compliance with the agreement of 07.02.1996 (the document was signed by representatives of Russia, Ukraine, the OSCE, Transdniestria, Moldova), but most likely to the intention to disable Transdniestria to carry out separately customs procedures, to collect customs payments, ensuring the revenue of the consolidated budget of Transdniestria.

Taking into consideration the aforementioned, it is possible to assert that having withdrawn customs seals the Republic of Moldova expected the acceptance of actions taken by customs officials of Transdniestria to be illegal, non-compliant with Moldavian legislation and not contributing to budget replenishment of Moldova.

 

Factors caused changing of regime  of customs activity of Transdiestria

2.1. Economic crisis in the Republic of Moldova in 2001 on the eve of introduction  of new customs seals

The reasons for artificial changing of the regime of customs activity of Transdniestrian Moldavian Republic and accordingly – introduction of new attributes of customs system- customsseals, can be divided into two groups: political and economical.

Having faced with principled difference of positions of the Republic of Moldova and Transdniestria, the Moldavian side refused to seek for mutually acceptable decisions and adopted the position of power pressure on Transdniestria.^[22] For instance, on the eve of introduction of new customs seals the Ministry of Foreign Affairs of the Republic of Moldova addressed with recommendations to diplomatic missions, accredited in Moldova, not to issue entry visas to representatives of bodies of state power of Transdniestria. Simultaneously, the foreign-policy department of Moldova addressed to the CIS countries with call not to maintain contacts with representatives of Transdniestria.

When researching social-economic development of the Republic of Moldova within the period of 1999-2003, for instance, on grounds of the open official sources of International Monetary Fund (IMF experts’reports, statements, programs, statistics),^[23] it has become obvious that by the moment of introduction of new customs identification, Moldova was in economic crisis and sharply needed additional financial sources. For instance, in 2000 the external debt of the Republic of Moldova amounted to 110% of Gross Domestic Product (1.6 milliards of US dollars)^[24] including guaranteed by the state — 1,024 milliards of US dollars and expenses on debt services amounted to 40% of the revenue of the budget of the Republic of Moldova.^[25]

In October 2001 the Ministry of Finance of the Republic of Moldova has stated on possible default, ^[26] inability of Moldova to pay its debt to external creditors. In this period the Ministry of Finance had to convert everyday revenue to the budget and to direct them for external debt services. The current situation did not allow carrying out social-economic policy of the state — finance sources were absent. At the end of November 2001 the revenue to the state budget amounted just to 74,4% from the planned receipts for a year.^[27] Especially this problem was sharp n relation to VAT payments and excises.

Summarizing the aforesaid, one can state that in the period of introduction new customs identification the Republic of Moldova:

– was in economic crisis;

– urgently needed financial sources;

– was searching new mechanisms to replenish the revenue of the republican budget.

In its turn the Moldavian side provided new reasons that changed the procedure of export/import transactions of Transdniestria. According to Moldova, they were bases on the WTO requirements.

 

2.2.       Moldavian position

Information on forthcoming introduction by Moldavian side of new customs seals has appeared in open information sources in the middle of August of 2001, i.e. two weeks before.

Thus, on 17.08.2001 the Head of the Department for Customs Control Andrey Stratan stated that Customs Service of the Republic of Moldova did not intend to withdraw customs seals from anybody. According to him, “under the WTO conditions which entered Moldova, Moldavian side should optimize accounting of foreign trade transactions and adjust it in accordance with international requirements. This caused the need to change the seals”.^[28]

Continuing this subject, the Head of the Department for Customs Control said that “customs officials of Transdniestria will also receive new seals provided that they will be accepted for employment to Customs Department of Moldova. «Make any concessions and compromises on this issue we can not – such are the WTO requirements. Nobody is interested in internal problems of Moldova – the procedure has to be ensured in compliance with common norms, and economic subjects of the region will have to work only with Moldavian Customs”, Andrey Stratan concluded.

The thing the Chief customs officer forgot to mention about was the following: when entering the World Trade Organization the Republic of Moldova presented for the attention of the WTO the agreed with Russia, Ukraine, the OSCE, Moldova and Transdniestria international Agreement – On the Bases for Normalization of Relations between the Republic of Moldova and Transdniestria of 08.05.1997 according to which Transdniestria has the right “to
unilaterally establish and maintain international contacts in the economic sphere”.^[29] On the formal bases Moldova could not been accepted to the WTO while in the territory of this state regional conflict took place.

The Memorandum of 08.05.1997 indicated that the conflict was successfully resolved, Transdniestria could separately carry out foreign trade transactions, and accordingly any obstacles to membership of Moldova to the WTO did not take place.

After the introduction of new customs seals the Head of the Customs Service of the Republic of Moldova stated that customs bodies of Moldova have to check and control whether the foreign trade transaction is compliant with provisions of the Memorandum, concluded with the WTO. Accounting of export/import transactions (by Moldavian customs officers – author’s note) will be carried out in absolute compliance with international requirements.

Simultaneously the Republic of Moldova has made a new claim; each economic operator of Transdniestria must have its fiscal code and bank details in strict compliance with legislation of the Republic of Moldova(!).^[30]

When researching official statement of Customs Department of the Republic of Moldova of 14.09.2001 additional reasons of introduction of new customs seals are emerging:

– strengthening of economic security of Moldova (!),

– struggle with falsification of customs documents;

– protection of domestic market from smuggled goods (!).^[31]

In the course of the analysis of materials and positions of executive powers of Moldova with regard to problematic of introduction of new attributes of customs system it makes sense to provide the statement of the Head of the Cabinet of Ministers of the Republic of Moldova V.Tarlev concerning this issue, in accordance with which introduction of new customs seals since 1 September would help to establish an order in economy of the country, and alongside with this creation of joint Moldavian-Ukrainian customs posts (including at the border with Transdniestria – author’s note) along the Moldavian-Ukrainian border would assist to combat smuggling.^[32]

The following fact is interesting: the Head of the Cabinet of Ministers of the Republic of Moldova in his televised address stated that a transfer of Eastern Customs to Moldavian Government^[33] would not infringe the interests of Transdniestrian entrepreneurs, and “black hole” at the border with Moldova threatening to the rest of Europe, is securely protected from the East, and from now on neither a kilogram of goods would cross the border without appropriate examination and state stamp of the republic of Moldova attached on the relevant documents.

If the issue concerning the need of strengthening of economic security of Moldavian state (a period of protracted crisis in economy, inability of the Government to regulate economic system, lack of sources to replenish Moldavian budget, perspective of default and a desire for account of Transdniestria to solve its economic problems), then with regard to the category of “Moldavian legislation” it necessary to refer to the protocol of the agreed issues of 11.03.1996, signed by the Presidents of the Republic of Moldova and Transdniestria.

In accordance with this document, “Transdniestria adopts the Organic Law (Constitution),^[34] laws and regulations^[35].” In this connection statements concerning that Transdniestrian Moldavian Republic was not empowered to regulate legal relations by means of its own regulatory provisions, are groundless. That is why an attempts of Moldavian side to ignore Transdniestrian legislation look to be unfound.

Position of the President of the Republic of Moldova concerning the issue of customs seals, in its turn, was as follows: nobody should accept the fact that on behalf of the Republic of Moldova an unknown person carries out some customs procedures”. In his opinion, two customs cannot exist in one state.^[36]

Addressing to the people of Transdniestrian Moldavian Republic on 05.09.2001 the President of the Republic of Moldova declared that “absence of the secured and legal customs control at the Eastern borders of Moldova, which the Tiraspol administration tried to achieve with the assistance of former leadership of the Republic of Moldova has led to the fact that Transdniestrian territory has actually become the residence of many mafiosi clans laundering and transferring on the accounts of foreign banks millions and millions of dollars. Beneath our eyes the transnational criminal group has been formed that do not scruple anything. That was money laundering, fuel smuggling, smuggling of cigarettes, weapon, live goods. These formations are the principal sponsors of the opponents of consolidation of Moldova. It were they who need not the order at the border, but not to them who produced metal and shirts».

According to the President of the Republic of Moldova, the leadership of Moldova accepts this situation as a challenge to order, law and state security, and has begun a hard struggle against international criminality and mafiosi clans. The establishment of customs control along the whole Moldavian-Transdniestrian border is the first stage of this struggle.^[37]

For purposes of the objective assessment of situation on so-called “black hole” of Europe and contraband from Transdniestria, the author recommends to become familiar with the Chapter 4 “Smuggling from Transdniestria: myths and reality” of the research article “ Some Aspects Of Administrative-Legal Regime Of The Customs Activity Of Transdniestria In The Context Of Work Of The International Monitoring Missions”.^[38]

As regards the facts of smuggling of goods from the Republic of Moldova and Transdniestria, and initiated efforts by customs bodies of Transdniestria, presented in the relevant correspondence of the State Customs Committee and the Department for customs Control of the Republic of Moldova, they will be provided later on. Providing the facts and positions of the Moldavian side concerning the introduction of new customs seals, in addition the official statement by press service of the Republic of Moldova of 02.10.2001 should be referred to, in accordance with which “the economic blockade of the Left Bank area could not even mentioned, new customs seals just regulate relations of economic operators and combat against smuggling that has been inflicting great damage on economy of the Republic of Moldova for the last several years”.^[39]

Un-coordination of Moldavian statements and absence of integrated, in legal sense, position of bodies of state power of the Republic of Moldova regarding the issue of new customs seals and changing of regime of the customs activity of Transdniestria make the author to provide another point of view – of international experts from the Republic of Moldova – Moldavian delegation in working party on Ukraine’s accession to the WTO.

In particular, according to Moldavian experts, Ukraine has broken Article 12 of the WTO shareholder’s agreement when recognized customs seals of Moldova annulled on 31.08.2001 and still used by Tiraspol authorities. It stipulates that the WTO member states are “single customs territories. The WTO agreements prevail over the internal some, particularly, over the Memorandum of 8 May 1997 between Chisinau and Tiraspol that Ukraine often refers to”.^[40]

It should be noted that position of Russia regarding this issue was contrary. Thus, in open letter to the president of Russia Vladimir Putin of 24.09.2001 the State Duma deputies of the Federal Assembly of Russian Federation assessed the actions of the Republic of Moldova: Moldova has unilaterally changed the mechanism of customs identification. According to them, that was a gross violation of the Protocol Decision in area of activity of customs services of the Republic of Moldova and Transdniestria, signed and approved in the presence of mediators from Russia, Ukraine and the OSCE^[41], and establishment of economic blockade against Transdniestria in violation of Paragraph 3 of the Memorandum on the Bases for Normalization of Relations between the Republic of Moldova and Transdniestria of 08.05.1997.

Thus, the Republic of Moldova laid down the following reasons of introduction of new customs seals that caused changing of administrative-legal regime of the customs activity of Transdniestria as well as restriction of export potential of the region:

to optimize accounting of foreign trade transactions of the Republic of Moldova;

one state cannot have two customs;

transfer of the Eastern customs to the hands of Moldavian Government;

need to create single customs territory;

combat against forging of customs documents;

compliance of all customs procedures in the territory of Transdniestria with legislation of the Republic of Moldova;

protection of domestic market against smuggled goods;

establishment of order in economy of the country;

strengthening of economic security of Moldova;

re-submission of economic operators of Transdniestria to Moldavian side (registration in organs of justice of the Republic of Moldova – fiscal code and bank details;

imposition of additional taxation on economic operators of Transdniestria in connection with initiation of fiscal relations with Moldavian budget;

to oblige business entities of Transdniestria to cooperate solely with Moldavian customs;

myth about Transdniestrian Moldavian Republic as “black hole” at the border with Moldova;

struggle against money laundering, fuel smuggling, smuggling of cigarettes, weapon, drugs;

introduction of new seals is the first stage in struggle with international crimes and Mafiosi clans;

customs seals just regulate relations of economic operators.

When analyzing position of Moldavian side, it becomes apparent that procedure of withdrawal of customs identification of 1996 by the Republic of Moldova is no how compliant with norms of international law and runs counter to previously achieved Moldavian-Transdniestrian agreements in customs area.

Inability of the Republic of Moldova to optimize its foreign trade transaction, to establish order in economy of the country, to strengthen economic security of the state, intention to abolish Transdniestrian customs service, to obtain new sources of financing by means of imposition of additional taxation on economic operators of Transdniestria; desire to oblige them to work in accordance with legislation of the Republic of Moldova, to withdraw from the achieved agreements in the framework of negotiation process with Transdniestria – all these things are the problems of Moldova but not of Transdniestrian region.

Only one thing is unclear: how were the arguments provided by the Republic of Moldova connected with international law and external obligations?

As regards optimization of accounting of foreign trade of Transdniestria the counter question is arisen:

if customs bodies of the Republic of Moldova and Transdniestria has compared on a permanent basis data concerning Transdniestrian/Moldavian export, import, transit, then why is inability of Moldavian side to analyze this data and operationally react to detected facts of customs offences raised to the rank of problems originating from Transdniestrian customs?

It may be at issue is poor administration in customs system of the Republic of Moldova but not “requirements set up by the WTO”?

And finally it was Moldova not Transdniestria who divided single customs territory of Moldavian state, when the Parliament Regulation “On measures of implementation the Budget Act of 1999” №217-XIV of 12.12.2008 prescribed to the Government of the Republic of Moldova to create till 1 February 1999 the second line of customs control inside the country.^[42] Under the second line of control was understood the line along the perimeter of the Transdniestrian border.

Later the Moldavian Parliament Regulation №362 of 28.04.1999 “On joint inland fiscal control posts” prescribed to the Department for Customs Control and the Ministry of Finance of the Republic of Moldova to create joint inland fiscal control posts working continuously along the whole border^[43] with Transdniestrian region. This Regulation obliged all economic operators of Transdniestria to pay VAT and excise duty at joint inland fiscal control posts.^[44] (Regulation on joint inland fiscal control posts was approved by Ministry of Finance and Ministry of Internal Affairs of the Republic of Moldova in August 2000).^[45] As the result Transdniestrian products became noncompetitive in Moldavian market.

As regards the withdrawal of customs seals of 1996 and implementation of economic blockade against Transdniestria, none of the official representatives of the Republic of Moldova, Ukraine as well as of international organizations, up till now has not explained what norms of international law and what obligations of the Republic of Moldova before the international community were meant.

 

2.3 Withdrawal from circulation of customs seals of 1996

For purposes to obtain from Moldavian side official information concerning changing of regime of the customs activity of Transdniestrian Moldavian Republic in connection with forthcoming introduction of new customs seals, the State Customs Committee of Transdniestria sent a letter to the Customs Department of Moldova containing request to bring to notice of the Customs Committee of Transdniestria new requirements set up by the WTO to customs bodies of the Republic of Moldova pertaining introduction new attributes of customs system. The State Customs Committee’s request has not been answered.

In addition to the aforesaid, on 01.09.2001 the State Customs Committee of Transdniestria addressed the next letter^[46] to the Department for Customs Control of the Republic of Moldova requesting to send to the State Customs Committee of Transdniestria new customs identification in accordance with previously achieved agreements. The request has not been answered either. The Department for Customs Control of the Republic of Moldova did not provide the requested customs seals attempted to artificially limit the right of Transdniestria to carry out independently customs clearance of Transdniestrian cargoes by seals of the established form.

Since 01.09.2001 at the Moldavian-Ukrainian border Moldavian customs officers started to detain Transdniestrian cargoes placing a demand on accreditation, customs clearance of goods and customs payments in customs bodies of the Republic of Moldova.

In particular, on 01.09.2001 Ungeny customs house detained 23 carriages with scrap metal, destined for Moldavian Metallurgical Works, Rybnitsa; on 01.09.2001 Leusheny customs house detained a vehicle carried computer components for the research center “Monitoring”, Bendery; on 03.09.2001 the same customs house detained coloring agents and chemicals imported by close corporation “Tirotex”, Tiraspol; on 04.09.2001 Moldavian side detained a vehicle, carried textile for clothing factory “Vestra”, Bendery.^[47] It should be noted that the list of Transdniestrian companies whose goods were detained by Moldavian customs is quite considerable.

Regarded actions of customs bodies of the Republic of Moldova as “destructive and running counter to Moldavian-Transdniestrian agreements”, on 05.09.2001 the State Customs Committee of Transdniestria addressed a letter to the Director General of the Department for Customs Control of the Republic of Moldova A. Stratan with request to furnish explanations of reasons caused the actions of customs bodies of the Republic of Moldova on detention of Transdniestrian cargoes”.^[48]

Two months later Moldavian side represented by the Department for Customs Control of the Republic of Moldova on 06.11.2001 stated that “on the basis of the Decision of the Government of the Republic of Moldova №1412 865 of 23.08.2001 and Regulation of the Customs Department №131 of 30.08.2001all goods imported and exported by economic operators that did not have fiscal relations with the state budget of the Republic of Moldova must be declared to customs bodies of the Republic of Moldova”. ^[49] Any explanations and reasons of detention of Transdniestrian cargoes have not been furnished.

As the Republic of Moldova did not provide to Transdniestria new customs seals introduced by Moldavian side since 01.09.2001, customs bodies of Transdniestria continued to use attributes of customs system when carrying out customs clearance of goods in accordance with the Protocol Decision of 07.02.1996, samples of which were approved by the Protocol on coordination of seals and stamps for processing of customs documents by customs bodies of Trandniestria of 11.03.1996, about what Customs Service of the Republic of Moldova was notified.

As regards the issue of declaring of goods by economic operators of Transdniestria, the Government of the Republic of Moldova by the Decision №1001 of 19.09.2001 determined that “till 1 January 2002 (in the sequel this term was constantly extended – author’s note) declaring and customs clearance of all goods entering or leaving customs territory of the Republic of Moldova by economic operators-producers from the Eastern regions of Moldova shall be carried out in accordance with customs regime applicable at the border customs checkpoints and at the inland customs checkpoints. For carrying out customs procedures charges of 0,18% (!) shall be collected in accordance with the established procedure”.^[50]

On 14.11.2001 the trilateral working meeting of joint working group on customs issues was convened in Kiev where the experts of Ukraine, Transdniestria and the Republic of Moldova were present. Representatives of Ukraine stated that Ukraine as the state-guarantor would recognize customs identification of Transdniestria, determined by the Agreement on cooperation of Customs Services of Moldova and Transdniestria of 1996, and expressed the opinion that all matters of argument between Transdniestria and Moldova shall be solved on bilateral basis.

Note: on 12 November 2001 Ukraine sent from its territory from the customs checkpoint Kuchurgan and station Razdelnaya – Moldavian customs officers, which were there contrary to the existing legislation of Ukraine.

Later on the Ministry of Foreign Affairs of Ukraine refused statements of the Republic of Moldova concerning that Ukrainian state contributed to smuggling of goods from Transdniestria. The official representative of the MFA of Ukraine stated that “smuggling, for what practically Moldova blamed Ukraine, is the movement of goods without customs control and appropriate clearance. But all goods from Moldova and Transdniestria entering Ukraine and transit through its territory undergo appropriate customs clearance. All goods are imported absolutely legally, and a carrier is the state company of Moldova (Moldavian railroad)”.^[51]

Economic pressure on Transdniestria has been activated sharply in 2003 after signing the Protocol between the State Customs Service of Ukraine and Department for Customs Control of the Republic of Moldova on mutual recognition of shipping, commercial and customs documents supply.^[52] New regime of movement of goods across the Moldavian-Ukrainian border provided obligatory attachment of Moldavian customs seals and stamps on shipping^[53], commercial and customs documents originating from the customs territory of the Republic of Moldova.^[54]

In connection with the fact that Ukraine considers the territory of Transdniestria as a constituent part of the Republic of Moldova, new requirement concerning movement of goods across Moldavian-Ukrainian border began to apply to Transdniestrian goods. As a result — the Ukrainian side amended technological schemes for admission of persons, vehicles, and goods across the state border with Transdniestria, having obliged customs and border guard services of Ukraine to carry out checks of Transdniestrian cargoes with regard to availability of shipping, commercial and customs documents with customs identification of the Republic of Moldova.^[55] In respect of railway cargoes of Transdniestria Ukraine created a mechanism of their return, and refuse to accept goods for customs clearance without Moldavian customs identification.

However in 2003 Chisinau did not manage to fully implement provisions of Moldavian-Transdniestrian agreements of 15.05.2003 for a number of reasons. Kiev did not intend to refuse from beneficial for Ukraine trade-economic cooperation with Transdniestria, having allowed Transdniestrian cargoes to enter customs territory of Ukraine with previous customs identification, provided to customs bodies of Transdniestria in compliance with the Protocol Decision of 07.02.1996.^[56]

In 2005 by invitation of the President of Ukraine V.Ushchenko the President of Transdniestrian Moldavian Republic I.Smirnov payed an official visit to Kiev. In the course of the meeting the Head of the Ukrainian state expressed the position concerning the area of bilateral economic relations with Transdniestria consisting in inadmissibility of implementation of measures of economic pressure on Transdniestria.^[57] At the same time after a lot of to-ing and fro-ing Ukraine under pressure from the USA and EU determined the terms of joining to Moldavian plans of economic blockade of Transdniestria, that was fixed by the joint statement of 30.12.2005^[58] signed by the Prime Ministers of Ukraine and Moldova Y.Ekhanurov and V.Tarlev and by the Regulation of the Cabinet of Ministers of Ukraine of 01.03.2006 №112-р “The issue of customs clearance of goods and vehicles entering Ukraine from the Republic of Moldova”.

New regime of crossing the Moldavian-Ukrainian border by Transdniestrian cargoes has finally taken effect since 1 March 2006. For implementation of agreements, determined in joint statement of 30.12.2005, customs service of Ukraine since March 2006 was obliged to carry out customs clearance of goods and vehicles imported from Transdniestria in compliance with Moldavian-Transdniestrian Protocol of 15.05.2003.^[59]

In opinion of Russian side the fact which was tried to be represented in Kiev and Chisinau as the establishment of order at the border was actually the next attempt to exercise economic pressure on Transdniestria for purposes of compulsion to economic capitulation in matters of Transdniestrian conflict settlement.^[60]

In spite of the repeated statements of the authorities of Ukraine and Moldova that application of economic sanctions in relation to Transdniestria is inadmissible, and decision on new customs regime of movement of goods across the Transdniestrian segment of Ukrainian-Moldavian border should be taken with participation of Transdniestrian side. Transdniestria contrary to the provisions of the paragraph 3 of the Memorandum On the Bases for Normalization of Relations between the Republic of Moldova and Transdniestria signed in Moscow on 8 May 1997 did not take part in taking this decision, which directly concerned its interests. The decision caused the economic blockade of Transdniestria, infringes the right of the region “to unilaterally establish and maintain international contacts in economic, scientific-technical and cultural spheres”, fixed by the mentioned Memorandum signed including by Ukraine, Moldova, and Ukraine as a state guarantor at that.^[61]

“The establishment of order at the border”, as the authorities of Ukraine and Moldova state, was no other than application of economic sanctions in relation to Transdniestria with a view to force the region to agree with such variants of solving this problems which practically mean the infringement of Transdniestria’s right on a special status, determined by international-legal documents.

Thus, Ukraine being a state-guarantor of Transdniestrian conflict settlement having sanctioned new procedure for goods movement across Transdniestrian-Ukrainian border broke not only agreements achieved with Transdniestrian side in economic area but international norms presented below.

 

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