SECOND SECTION
CASE OF KOSTOVSKI v. NORTH MACEDONIA
(Application no. 23773/17)
JUDGMENT
STRASBOURG
7 June 2022
This judgment is final but it may be subject to editorial revision.
In the case of Kostovski v. North Macedonia,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Branko Lubarda, President,
Jovan Ilievski,
Diana Sârcu, judges,
and, Hasan Bakirci, Section Registrar,
Having regard to:
the application (no. 23773/17) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 March 2017 by a Macedonian/citizen of the Republic of North Macedonia, Mr Ljupcho Kostovski, born in 1954 and living in Skopje (“the applicant”), who was represented before the Court by Mr Z. Velichkoski, a lawyer practising in Skopje;
the decision to give notice of the complaints concerning Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention to the Government of the Republic of North Macedonia (“the Government”), represented by their Agent, Ms D. Djonova, and to declare the remainder of the application inadmissible;
Having deliberated in private on 17 May 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s complaints under Article 6 § 1 of the Convention about the lack of an oral hearing in misdemeanour proceedings and the domestic authorities’ refusal to admit evidence, and his complaint under Article 1 of Protocol No. 1 that the measures imposed in the misdemeanour proceedings were excessive.
2. On 15 October 2014 the applicant, travelling by car towards Serbia together with his son, was stopped by customs officials of the respondent State at a border crossing. Following a search of the applicant, customs officials found 11,100 euros (EUR). In accordance with the relevant domestic legal instruments concerning the terms whereby cash in foreign currency or cheques could be taken into or out of the State and the permitted amounts, the sum of EUR 2,000 was returned to the applicant and the remaining sum of EUR 9,100 was temporarily seized. The applicant signed the record of the search and seizure of the money, prepared by the customs authorities, and submitted a statement containing his version of the events.
3. On the same day, the Customs Authority initiated misdemeanour proceedings against the applicant for attempting to carry funds from the customs area of the respondent State without authorisation and undeclared. On 29 October 2014 the applicant submitted his response, in which he contended that he had declared the money at the border. As evidence, he provided a written statement from his son who had accompanied him, a receipt from an exchange office in the amount of EUR 8,000, a contract for the sale of a vehicle and a certificate of unemployment. On the same day, he submitted a request to the Customs Authority to hold an oral hearing during which he would be able to confront the officers who had been present at the scene on 15 October 2014, and to admit into evidence the video-recordings from the border-crossing point’s security camera, which were kept for thirty days. However, the Customs Authority did not respond to his request.
4. On 19 March 2015, in misdemeanour proceedings, the Customs Authority found that the applicant had committed a foreign-currency misdemeanour by failing to declare EUR 9,100 upon leaving the country. It confiscated that amount and fined him EUR 1,500. In its decision, the Customs Authority refused to have regard to the receipt from the exchange office (see paragraph 3 above) on the grounds that the applicant should have presented it when crossing the border. The Customs Authority did not address the applicant’s request of 29 October 2014.
5. The applicant challenged the confiscation order by means of an administrative action. He complained about, inter alia, the lack of an oral hearing before the Customs Authority and the fact that it had disregarded his request to admit into evidence the video-recordings from the border-crossing point’s security camera.
6. On 11 February 2016 the Administrative Court set aside the Customs Authority’s decision. The court did not address the applicant’s complaint that his request of 29 October 2014 had been disregarded by the Customs Authority, but found that it had not been necessary to confiscate the entire amount of money which had been taken from him, as he had submitted a valid receipt from an exchange office that should have been taken into consideration.
7. Following appeals lodged by the applicant and the Attorney General, on 21 September 2016 the applicant’s action was dismissed in a final decision delivered by the High Administrative Court. The court upheld the Customs Authority’s decision of 19 March 2015 (see paragraph 4 above). It dismissed the applicant’s complaint about the lack of an oral hearing before the Administrative Court, on the grounds that the case did not meet the statutory criteria for holding a hearing – that is to say, a hearing was not required on account of the complexity of the case or for the establishment of the facts. It further held that the applicant should have reported the money and presented the receipt from the exchange office when crossing the border. In respect of the complaint about the refusal to admit the video-recordings into evidence, the court only held that that request had been unsubstantiated; it did not address the applicant’s complaint that the Customs Authority had disregarded his request of 29 October 2014.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION8. At the outset, the Court observes that the present case concerns customs proceedings, which do not belong to the traditional categories of criminal law. Although no plea of inadmissibility on account of lack of jurisdiction ratione materiae was made by the Government, this matter goes to the Court’s jurisdiction and it is not prevented from examining it of its own motion (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, 5 July 2016).
9. Taking into account the criteria to be considered in the assessment of the applicability of the criminal aspect of Article 6 (see Jussila v. Finland [GC], no. 73053/01, §§ 30-38, ECHR 2006‑XIV, with further references) and the circumstances of the present case, in particular the nature of the offence and the punitive purpose of the measures applied in respect of the applicant (see paragraph 4 above), the Court finds that Article 6 is applicable under its criminal head. It further notes that the applicant’s complaints under this provision are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.
10. The general principles concerning the right to an oral hearing guaranteed under Article 6 § 1 have been summarised in Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti. v. Turkey (no. 48657/06, §§ 27-30, 28 November 2017). The general principles concerning the “fairness” of the taking and examination of evidence guaranteed under Article 6 § 1 have been summarised in Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, §§ 83-84, 11 July 2017) and Mirilashvili v. Russia (no. 6293/04, §§ 161-63, 11 December 2008).
11. Turning firstly to the applicant’s complaint concerning the lack of an oral hearing, the Court notes that it has previously accepted that cases such as the present one may not require an oral hearing (see Jussila, cited above, § 43). That being so, the applicant’s purpose in requesting a hearing was to properly establish the factual circumstances of his case. In particular, he contested the facts as presented by the customs officers and argued that he had declared the money to customs. The Court also notes that the record of the search, signed by the applicant, did not contain information as to where and how were the money found, a fact which may be seen as giving further justification to the applicant’s argument that it was necessary for him to confront the officers in a hearing. However, neither the Customs Authority nor the Administrative Court addressed his request for a hearing. The request was addressed for the first time by the High Administrative Court in the final decision in the case, which the applicant could no longer challenge. As a result, the customs officers were never questioned in the course of the proceedings.
12. Moreover, the Court considers that the lack of an oral hearing before the Customs Authority and the fact that the fine and the confiscation order imposed on the applicant amounted to a total of EUR 10,500 were additional reasons why a hearing, primarily before the Administrative Court as a first‑instance court, was necessary (see, mutatis mutandis, Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti., cited above, § 30). Thus, while it is true that the circumstances of the present case were not particularly complex, the Court considers that there were issues which, as a matter of a fair trial, could not have been properly determined without an oral hearing, and that, furthermore, the domestic courts did not properly address the applicant’s reasons for requesting an oral hearing.
13. The Court now turns to the applicant’s complaint regarding the refusal to admit into evidence the video-recordings from the border-crossing point. It reiterates that the admissibility of evidence or the way in which it should be assessed are primarily matters for regulation by national law and the national courts, and the Court will normally not question the national courts’ assessment, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Moreira Ferreira, cited above, § 83). At the same time, it reiterates that judgments of courts and tribunals should adequately state the reasons on which they are based (ibid., § 84). In the present case, the Court cannot disregard the fact that the applicant’s request of 29 October 2014, in which he asked, inter alia, that the video-recordings be admitted into evidence, was never addressed by the Customs Authority or by the administrative courts (see paragraphs 4, 6 and 7 above). Although the Government argued that the failure to admit into evidence the video‑recordings, which were without sound, had been compensated for by giving the applicant the possibility of putting forward his case in his written submissions and of challenging the evidence against him, no such reasons were advanced by the domestic courts in their decisions, and therefore the Court is unable to take them into consideration (see, mutatis mutandis, Paliutis v. Lithuania, no. 34085/09, §§ 45 and 47, 24 November 2015).
14. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities failed to give adequate reasons for refusing the applicant’s requests to hold an oral hearing and to admit into evidence the border crossing video-recordings, thereby falling short of their obligations under Article 6 § 1 of the Convention.
15. There has accordingly been a violation of that provision.
ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION16. The applicant also complained under Article 1 of Protocol No. 1 to the Convention. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has examined the main legal questions raised in the present application. It thus considers that there is no need to give a separate ruling on the applicant’s remaining complaint (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
APPLICATION OF ARTICLE 41 OF THE CONVENTION
17. The applicant claimed 9,100 euros (EUR) in respect of pecuniary damage, EUR 4,000 in respect of non-pecuniary damage and EUR 1,052 in respect of the costs and expenses incurred before the Court.
18. The Government contested those claims.
19. The Court does not discern any causal link between the violation found and the pecuniary damage alleged. In particular, it cannot speculate as to what the outcome of the misdemeanour proceedings would have been had the violation of Article 6 § 1 of the Convention not occurred (see, for example, Mitrinovski v. the former Yugoslav Republic of Macedonia, no. 6899/12, § 56, 30 April 2015). It therefore dismisses this claim. However, it awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable.
20. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 850 covering the costs and expenses for the proceedings before the Court, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds that there is no need to examine the complaint under Article 1 of Protocol No. 1 to the Convention;Holds(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 7 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakirci Branko Lubarda
Registrar President