Communicated on 19 June 2017
FOURTH SECTION
Application no. 4870/09
Volodymyr Grygorovych BORYSOV
against Ukraine
lodged on 21 January 2009
STATEMENT OF FACTS
The applicant, Mr Volodymyr Grygorovych Borysov, is a Ukrainian national who was born in 1953 and lives in Ternopil.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 October 2007 a car was brought into Ukraine under a temporary importation regime.
On 12 December 2007 the applicant was stopped while driving the car.
On 11 February 2007 the Ternopil Customs Office drew up a report stating that the applicant had breached customs regulations by operating a vehicle imported under the temporary importation regime without a permit issued by the customs authorities.
On an unspecified date the Customs Office sent the applicant’s case to the Ternopil Court seeking a conviction on charges of infringement of Article 336 of the Customs Code.
The applicant alleges that he was not informed about the examination of his case by the court.
On 7 August 2008 the court considered the case in the presence of a prosecutor and in the applicant’s absence. The court noted that the applicant had been duly notified about the hearing but had failed to appear. It found the applicant guilty of the offence under Article 336 of the Customs Code and ordered confiscation of the vehicle, stating that a fine could not be imposed since more than two months had passed since the incident.
The judgment was not amenable to appeal.
B. Relevant domestic law
Customs Code of 2002 in force at the material time
Article 328 of the Code provided that a fine for an infringement of the customs rules could be imposed no later than two months after the infringement had taken place or, in case of a continuing infringement, within two months of its discovery. The sanction of confiscation was not subject to that time-limit.
Article 336 of the Code prohibited the operation of vehicles subject to customs control without a permit from the customs authorities. It provided for the following alternative sanctions for infringement of that rule: (i) a fine of UAH 750 to 1700 (about EUR 99 to 224 at the time) or (ii) confiscation of the vehicle.
COMPLAINTS
The applicant complains under Articles 6 and 13 of the Convention that:
(i) he was not informed about the examination of his case by the domestic court and was thus prevented from presenting his position before the domestic court; and
(ii) the authorities delayed the proceedings against him, leaving the domestic court no choice but to impose the more severe sanction of confiscation on him.
He also complains that he was deprived of his property in absentia.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing within a reasonable time, in accordance with Article 6 § 1 of the Convention? In particular:
(i) was the principle of equality of arms respected?
(ii) did the delay on the part of the authorities in conducting proceedings against the applicant predetermine the domestic court’s decision to impose a more severe sanction of confiscation on him?
2. Did the confiscated vehicle constitute the applicant’s “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was the vehicle’s confiscation in compliance with the requirements of that provision? In particular, was the confiscation in accordance with “the conditions provided for by law” and “in accordance with the general interest”? If so, did the domestic authorities strike a fair balance between the demands of the general interest and the interests of the applicant?
Full & Egal Universal Law Academy