Communicated on 3 May 2017
FIRST SECTION
Application no. 24313/10
Artashes ANTONYAN
against Armenia
lodged on 3 May 2010
STATEMENT OF FACTS
The applicant, Mr Artashes Antonyan, is an Armenian national who was born in 1954 and lives in Kajaran. He is represented before the Court by Mr A. Karakhanyan and Ms M. Ghulyan, lawyers practising in Yerevan.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 September 2005 a company called Z.P.M.K (“the Company”), which was the applicant’s employer, purchased technical equipment in the Russian Federation.
On 21, 24 and 26 October 2006 the equipment was imported into Armenia.
On 30 October 2006 the applicant, acting on behalf of the Company, filed a customs clearance declaration with the State Customs Service (“the Service”) for the imported technical equipment. It appears that the declaration was prepared by the customs officers, and the applicant signed it on behalf of the Company.
On 30 July 2008 officers of the Service prepared an audit report which revealed that the customs clearance of 30 October 2006 contained errors. In particular, it stated that the applicant had erroneously declared the price of the imported equipment to be 194,823 US dollars (USD), whereas the actual price of that equipment was USD 1,461,176.
On 17 October 2008 an officer from the Investigation Department of the Service drew up an administrative offence protocol and initiated proceedings in respect of the applicant. The protocol stated that on 30 October 2006 the applicant, acting on behalf of the company, had erroneously declared that the price of the imported equipment was USD 194,823.6, whereas the actual price of that equipment was USD 1,461,177, and thereby committed an offence under Article 203 of the Customs Code.
On 27 October 2008 the Service issued a decision imposing a fine on the applicant under Article 203 of the Customs Code. The fine was equivalent to the price of the erroneously declared equipment, that is to say 579.506.236.48 Armenian dram (“AMD”).
On 27 December 2008 the applicant filed a claim with the Administrative Court, seeking to nullify part of the decision of 27 October 2008. Referring to Article 37 of the Code of Administrative Offences (“CAO”), the applicant argued that the contested decision was unlawful, as it had been adopted in breach of the two-month time-limit for holding an individual responsible for violating customs regulations. The applicant argued that the audit conducted by the Service on 30 July 2008 had already revealed all the elements of a breach of customs regulations, and the deadline for imposing a fine on him for this breach had therefore expired on 30 September 2008. In such circumstances, the applicant argued, Article 247 of the CAO barred the Service from initiating proceedings against him, while any pending proceedings should have been terminated.
On 28 August 2009 the Administrative court rejected the applicant’s claim and ordered the applicant to pay the fine imposed by the Service, namely AMD 579,506,236.48. The Administrative Court referred to the audit report of 30 July 2008 as an established fact but found that the fact that the applicant had committed an administrative offence had been revealed – within the meaning of Article 37 of the CAO – on 17 October 2008, when the officer from the Investigation Department of the Service had drawn up the protocol of an administrative offence in respect of the applicant. The Administrative Court therefore concluded, since the applicant had been fined on 27 October 2008, that the two-month time-limit prescribed by Article 37 of the CAO had been observed by the Service.
On 28 September 2009 the applicant filed an appeal with the Court of Cassation, where he raised arguments similar to his initial claim.
On 4 November 2009 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit.
B. Relevant domestic law
1. Code of Administrative Offences (in force since 1986)
Article 37 provides that sanctions for breaches of the customs regulations may be imposed within two months from the date on which the offence was revealed.
Article 247 provides that proceedings in respect of an administrative offence may not be initiated − and those that have already been initiated must be terminated − if the deadline prescribed by Article 37 has already expired.
2. Customs Code (in force since 2001)
Article 203 provides that failure to declare goods that have crossed customs borders, that is to say failure to include the correct data in the customs declaration referring to those goods, is punishable by a fine in the amount of the customs price of those goods.
Article 209 provides that proceedings concerning violations of customs regulations shall be initiated as soon as a protocol detailing the customs regulations violation has been drawn up.
COMPLAINTS
The applicant complains that the imposition of a fine on him under Article 37 of the CAO was not in accordance with the procedure prescribed by law, as required by Article 1 of Protocol No. 1. In particular, the applicant complains that the Administrative Court’s interpretation of the rule concerning the two-month time-limit prescribed by Article 37 of the CAO was not reasonably foreseeable in its application at the material time.
QUESTIONS TO THE PARTIES
Was the interference with the applicant’s “possessions” in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1 to the Convention? In particular, was the rule prescribed by Article 37 of the CAO sufficiently clear and foreseeable?
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