Libya Customs Law

The manager of the branch of a foreign company may become civilly liable by virtue of article 125 paragraph 2 of law no.67 of 1972 regarding customs, in his capacity as representative of the owner of the goods, which were the subject of violation of the said law.
The said paragraph provides: "The owners of the goods shall be considered liable for the acts of their employees as well as for the acts of their customs clearance agents, in respect of the preparation of the goods' particulars and the relevant customs procedures thereof .this liability is in addition to that of the customs clearance agents for their acts and for the acts of their employees acting on their in this respect."

On the other hand article 120 of the said law, subject the following acts punishment in a manner similar to smuggling:

1- Bringing goods of any kind into/ or taking such goods out of Libya, by illegal means without paying the required customs duties in full or in part, or by contravening the application concerning banned goods.
2- Failure to submit the details of the goods, the declaration thereof, or any other documents relating to the cargo manifest, or the reports of responsible for the means of transportation.
3- Submitting forged wrongful, or false documents, or invoices in respect of the goods.
4- Giving false information, or affixing false marks or hiding such marks.
5-Committing any other act with the intent of avoiding payment of the due customs duties in full or in part, or by violating the regulations applicable in respect of the banned goods.

The law clearly affirms that non-seizure of the goods does not exclude smuggling.
The secretary of the treasury issued decision no.56 of 1977 specifying situations where documents regarding the country of origin of goods are required. The decision stipulates the submission of the documents indicating the origin of the imported goods in the following cases:
a. When the imported goods are suspected to be Israeli origin or that Israeli has interests therein.
b. When importing goods from countries with whom agreements of favorable customs treatment were concluded which treatment involves decreases or exemptions of customs duties for goods imported there from.
c. Importation of goods for the first time into Libya.
Without prejudice to any other harsher penalty contemplated in any other law, Art.122 of law no. 67/72 lays down that the penalty for smuggling or attempting to commit the said offence is:

1. A fine of a maximum of three time of the customs duties due, plus an amount of three times of the value of goods constituting the subject matter of the offence, provided that such fine amounts to not less than one hundred dinars,
Or
2. Detention for a period not exceeding six months,
Or

3. Both the said penalties.
4. The court may also order:
A) The confiscation of the goods being the subject matter of the smuggling offence.
B) The confiscation of the means of transportation, the tools and the materials used in smuggling, except ships and aircraft, unless such means were actually prepared or rented for this purpose, and in case of committing smuggling for the second time, the court may double the penalty and the amount of damages.

However if the activity of the foreign company's Libyan branch, is in air, sea or land transportation then paragraph 1 of the said article 125 is applicable. This provides for the following:

Captains of ships, airplanes and other means of transportation are civilly responsible for any violation in respect of the crew of the respective ships, airplanes, or other means of transportation. They should provide sufficient financial guarantees for the payment of customs duties and fines, which are legally due.

In case of failure to provide such financial guarantee, the ships, airplanes and other means of transportation shall be considered as a guarantee for the payment of customs duties and fines.

There is no known decision of the lower courts or any Supreme Court precedent regarding the application of Para 2 of art 125. However certain requirements must be legally satisfied in order to apply this provision and to hold the owners of the goods liable in civil terms to pay damages.

On sentencing the customs clearance agent pursuant to article 122 paragraph 2 of the said customs law, the court may at its absolute discretion, order the confiscation of the goods, belonging to any third party- whether an individual or an entity - who would have had any part in committing the offence. This provision has far reaching effects, and it is not only illogical, but also contrary to the general rule of criminal law set out under article 63 and 64 of the Libyan criminal code, which prohibit the confiscation of things obtained, gained, used or prepared in the commission of the offence, where the owner thereof had no part in the offence.

However, it seems that the justification for this abnormal effect lies in the desire of the legislator to increase the severity of the penalty for smuggling, or the attempt thereof, in an effort to deter offenders or potential offenders in this respect.