CASE OF MYAKOTIN v. UKRAINE

FIFTH SECTION

CASE OF MYAKOTIN v. UKRAINE

(Application no. 29389/09)

JUDGMENT
 

STRASBOURG

17 December 2019

This judgment is final but it may be subject to editorial revision.

In the case of Myakotin v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having deliberated in private on 26 November 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 29389/09) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ivan Aleksandrovich Myakotin (“the applicant”), on 14 May 2009.

2.  The applicant was represented by Mr V.I. Dovzhenko, a lawyer practising in Mariupol, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna from the Ministry of Justice.

3.  The applicant alleged breaches of Article 1 of Protocol No. 1 to the Convention on account of the confiscation of his car for the alleged breach of customs regulations.

4.  On 3 March 2014 this complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5.  The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTSTHE CIRCUMSTANCES OF THE CASE

6.  The applicant is a citizen of Ukraine, he was born in 1987 and lives in Berdyansk.

7.  On 22 June 2007 the applicant received a residence permit issued by the Spanish authorities valid until 18 June 2009. He states that he resided in Spain at the material time.

8.  On 30 April 2008 the applicant crossed the Ukrainian border with Poland at the customs post “Krakovets”. He was driving a car, “Opel Vectra”, bought in Spain. During the customs check the applicant stated that he lived permanently in Spain and had come to Ukraine to continue his studies. In the customs declaration the applicant also indicated that he resided in Spain. In support of his statement the applicant submitted a Spanish residence permit. A customs officer, T., decided that the applicant, as a resident of Spain, was allowed to temporarily bring the car into the customs territory of Ukraine until 30 June 2008 without paying customs duties.

9.  On 5 June 2008 the applicant was stopped by traffic police and on 27 June 2008 an administrative offence report was drawn up. It was concluded that the applicant had breached the customs rules since he should have been considered as a resident of Ukraine and thus should have paid 56,394.40 Ukrainian hryvnias (UAH) (at the material time, around 5,000 euros (EUR)) in customs fees for his car.

10.  On 2 July 2008 the Lviv Customs Office ordered an internal investigation of the lawfulness of the actions of customs officer, T., whose duty it was to carry out the customs formalities in the applicant’s case.

11.  On 4 July 2008 the Berdyansk Customs Office seized the applicant’s car. The administrative offence case against the applicant instituted for a breach of customs rules was transferred to a court. The applicant was accused of the movement of a vehicle through the customs border of Ukraine outside customs control and of evasion of customs duties.

12.  On 7 July 2008, as requested by the Berdyansk Customs Office, the Berdyansk Branch of the Zaporizhzhzya Chamber of Commerce and Industry evaluated the applicant’s car and drew up a report stating that it was worth UAH 76,088 (at the material time EUR 9,881.56).

13.  On 7 July and 21 August 2008 the Berdyansk Tax Police decided not to institute criminal proceedings against the applicant for tax evasion and trafficking as the amount of alleged damages was less than the minimum amount required for the acts in question to constitute an offence under the Criminal Code of Ukraine.

14.  On 4 August 2008 the Berdyansk Customs Office drew up a report on the applicant’s administrative offence case. The Customs Office found that during the customs check on 30 April 2008 the applicant had declared that his permanent place of residence was Spain. However, the applicant’s passport did not contain a stamp certifying that fact. Moreover, the Customs Office found that the fact that the applicant’s permanent residence had been registered in Berdyansk also confirmed that when crossing the border he was a resident of Ukraine. Based on the above and referring to the provisions of, inter alia, the Law of Ukraine “On import (dispatch) into Ukraine, the customs clearance and taxation of personal belongings, goods and vehicles imported (dispatched) by individuals into the customs territory of Ukraine” (see paragraph 31 below) and the Resolution of the Cabinet of Ministers of Ukraine no. 231 of 31 March 1995 on the approval of the procedure for the issue of a passport of a citizen of Ukraine and travel documents of a child, their temporary suspension and seizure (see paragraph 33 below), the Customs Office concluded that when crossing the border the applicant was a resident of Ukraine. Finally, referring to the report on the market value of the car of 7 July 2008 (see paragraph 12 above) the Customs Office established that the customs duties evaded by the applicant amounted to UAH 70,922.90.

15.  On 22 August 2008 the Lviv Customs Office drew up a report on the internal investigation. According to this report, T. could not recall all the details of the circumstances of the customs formalities carried out on 30 April 2008 due to the lapse of time. He nonetheless explained that when crossing the border the applicant had provided documents certifying ownership of the car and a customs declaration indicating that his permanent place of residence was Spain. It also follows from the report that during the inquiry on the border the applicant presented his residence permit issued by the Spanish authorities and explained that he permanently resided in Spain and that he had deposited his domestic identity document with the State authorities before he left Ukraine.

16.  On 5 September 2008 customs officer, T., was disciplined for not correctly applying the customs regulations in the applicant’s case. It was noted in the relevant decision that since in the customs declaration it had been indicated that the applicant permanently resided in Spain, T. had decided that the applicant could temporarily bring his car onto Ukrainian territory. However, such a decision was unlawful since there was no indication that the applicant had been registered permanently or temporarily in a Ukrainian consulate abroad. It was also concluded that T. could have, and must have, understood the unlawfulness of his actions. Insufficient training and an inappropriate attitude towards the performance of his duties had been the reasons given for the incorrect application of the customs regulations.

17.  On 20 October 2008 the Berdyansk Local Department of the Ministry of Interior of Ukraine issued a certificate stating that since 16 December 2003 the applicant’s place of residence had been registered in the city of Berdyansk.

18.  On 10 November 2008 the Berdyanskyy Local Court, referring to Article 38 of the Code on Administrative Offences and Articles 322 and 328 of the Customs Code, terminated the proceedings in the applicant’s case as being time-barred; however, it ordered the confiscation of the applicant’s car. In a court hearing the applicant explained that he had been working in Spain and it had been the first time he had entered Ukraine using his car. When entering Ukraine he had presented all relevant documents to a customs officer and was not evading the customs control. The court, however, found that when crossing the border the applicant had declared in the customs declaration that he resided permanently in Spain. He also indicated that he had been temporarily bringing his car with him. On the same day he had taken an obligation to remove the car from the customs territory of Ukraine by 30 June 2008. The court held that according to the information received from a local department of the Ministry of Interior of Ukraine (see paragraph 17 above) at the time of the border‑crossing his place of residence had been registered in the city of Berdyansk. The court further cited the findings of the report on the internal investigation (see paragraph 15 above), according to which customs officer, T. had been disciplined for not correctly applying the customs regulations in the applicant’s case. Based on the above considerations the court concluded that the applicant, being a resident of Ukraine, had entered untrue information into the customs declaration and, as a result of abuse of office by the officers of the customs authorities, he had evaded payments of customs duties.

19.  The applicant appealed stating that his guilt had not been proved. There was no evidence that he had an intention to breach customs rules. The applicant submitted all necessary documents to the customs officer. In particular, during the internal investigation, customs officer, T., admitted that he had taken the relevant decision on the basis of the documents submitted by the applicant. The applicant also noted that he had no permanent place of residence in Ukraine since his parents lived in Spain and he had been coming to Ukraine twice a year to pass exams at the university. Referring to the provisions of the law on “Natural Persons’ Income Tax” (see paragraphs 28 and 29 below) the applicant insisted that he had been a resident of Spain and the absence of the “permanent residence” stamp in his passport had not been a criterion for establishing his place of residence. While imposing the confiscation measure, the first-instance court had failed to take into account his character, the degree of his guilt, his financial situation, the nature of the offence, its mitigation and aggravating factors. The applicant finally noted that the court had failed to provide any reasoning in support of its decision not to fine him but to confiscate his car. According to the applicant, such a sanction was too severe in respect of his offence and questioned whether there should have been a sanction at all.

20.  On 17 November 2008 the Azov Regional Management Institute confirmed that the applicant had been studying there since 2004.

21.  On 22 December 2008 the Zaporizhzhya Regional Court of Appeal amended the decision of 10 November 2008 and found the applicant guilty of breaching the customs rules under Article 351 of the Customs Code. The court noted that since the sanction of confiscation could be applied at any time, the proceedings against the applicant for a breach of Article 351 of the Customs Code could not be terminated as time-barred. The court further established that the customs duties evaded by the applicant amounted to UAH 56,393.40 (at the material time around EUR 4,994). The applicant’s behaviour, according to the appeal court, attested that when declaring his place of residence during the border-crossing the applicant ought to have been aware of the unlawfulness of his actions. In particular, in the court hearing the applicant could not provide a persuasive answer as to why he had considered that Spain had been his permanent residence. Moreover, the applicant had refused to reply to the court’s questions concerning his place of residence registered in the city of Berdyansk. The court finally noted that the fact that customs officer, T., had incorrectly applied the customs regulations in the applicant’s case, did not disprove the applicant’s guilt.RELEVANT DOMESTIC LAWCustoms Code, 2002 (in force at the material time)

22.  Article 81 of the Code provided that the declaration of goods and vehicles shall be made by means of an application containing accurate information about goods and vehicles, the purpose of their movement through the customs border of Ukraine, as well as the information necessary for customs control and customs clearance.

23.  Article 88 of the Code provided that during the customs formalities the declarant must:

(i)  declare goods and vehicles in accordance with the procedure established by this Code;

(ii)  show goods and vehicles for customs control and customs clearance at the request of the customs authority;

(iii)  provide the customs authority with the documents provided by the legislation and information required for the execution of customs procedures;

(iv)  pay taxes and fees.

24.  Articles 322 and 328 of the Code provided for confiscation as one of the administrative penalties for a breach of customs regulations. There was no time-limit for imposition of a confiscation.

25.  Other relevant provisions of the Code provided as following:

Article 351. Actions, Aimed at Movement of Goods and Vehicles through the Customs Border of Ukraine out of the Customs Control

“Actions, aimed at movement of goods and vehicles through the customs border of Ukraine out of the customs control, i.e. movement thereof through the customs border of Ukraine in places other than the location of a customs authorities or in the time other than the time for the customs clearance, or using unlawful exemption of goods from the customs clearance in the result of abuse of power by customs officials, -

shall be the reason for imposing penalty in the amount from 500 to 1,000 minimum tax-free personal incomes, or confiscation of such goods, as well as confiscation of vehicles used for transportation through the customs territory of Ukraine of goods – direct objects of violations of customs rules.”

Article 355. Activities, Aimed at Illegal Exemption from Taxes and Fees or at Reduction of their Amounts

“Declaring false data in customs declaration and submission of documents with such information to the customs authority as grounds for an exemption from taxes and fees or reduction of their amounts, or failure to pay taxes and fees within the time-periods, established by legislation, as well as other illegal actions, that resulted in taxes and fees arrears, where such actions do not constitute a criminal offence, -

shall be the reason for imposing a fine in the amount of one hundred up to five hundred minimum tax-free personal incomes on natural persons and from five hundred up to one thousand minimum tax-free personal incomes on enterprise officials.”Code on Administrative Offences, 1984

26.  According to Article 38 of the Code, in force before 17 November 2008, the time-limit for the imposition of a penalty under administrative law is two months from the date of commitment of an administrative offence and two months from the date of detection of a continuous administrative offence. In case of refusal to institute criminal proceedings or of cessation of the criminal case, but in the presence of signs of an administrative offence in the offenders’ actions, an administrative penalty may be imposed no later than one month from the date of adoption of the decision to refuse the institution of a criminal case or to drop the case.

27.  As of 17 November 2008 the two-month time-limits for the imposition of a penalty in the cases examined by the court were replaced by three-month time-limits.Law on “Natural Persons’ Income Tax” (in force at the material time)

28.  The relevant provisions of Article 1.20.1 read as follows:

“Natural person - resident – individual who has a place of residence in Ukraine.

In case a natural person has also a place of residence in other country, he or she is considered to be a resident [of Ukraine] if that person has a place of permanent residence in Ukraine; if the person has a place of permanent residence also in a foreign state, he or she is considered a resident [of Ukraine] if he has more close personal or economic ties (centre of viral interest) in Ukraine.”

...

“Sufficient (but not exclusive condition for establishing a centre of viral interest of an individual is a place of residence of his or her family members ...”

29.  Article 1.20.2 read as follows:

“Natural person – non-resident – individual who is not a resident of Ukraine.”Law of Ukraine “On freedom of movement and free choice of place of residence in Ukraine” (Закон України “Про свободу пересування та вільний вибір місця проживання в Україні”), 2004 (in force at the material time)

30.  This Act regulates, inter alia, issues of registration of place of residence in Ukraine. According to Section 3 of this Act, registration of place of residence requires inserting such information (place of residence or place of stay) into the domestic identity document as well as inserting this information into the database of the State authorities.Law of Ukraine “On procedure of the import (dispatch) into Ukraine, the customs clearance and taxation of personal belongings, goods and vehicles imported (dispatched) by individuals into the customs territory of Ukraine” (Закон України “Про порядок ввезення (пересилання) в Україну, митного оформлення й оподаткування особистих речей, товарів та транспортних засобів, що ввозяться (пересилаються) громадянами на митну територію України"), 2002, (in force at the material time).

31.  The relevant provisions of Article 1 read as follows:

“Citizens-residents - Ukrainian citizens, foreigners, as well stateless persons who have a permanent residence in Ukraine, including those temporarily staying abroad;

Non-resident citizens - foreigners, citizens of Ukraine, individuals without citizenship, who have a permanent place of residence outside Ukraine, including those temporarily staying in the territory of Ukraine;

Permanent place of residence - place of residence in the territory of any state for the duration of at least one year by a citizen who does not have permanent residence in the territory of other states and intends to reside in the territory of this state during any duration regardless of the purpose of such residence, and provided that residence is not related to the performance by this person of an official duties under a contract.”

32.  According to Section 11 of the Act, Ukrainian residents can temporarily import a car for up to one year upon payment of customs duties.Resolution of the Cabinet of Ministers of Ukraine no. 231 of 31 March 1995 on the approval of the procedure for the issue of a passport of a citizen of Ukraine and travel documents of a child, their temporary suspension and seizure (in force at the material time)

33.  The procedure approved by this Resolution provided that in order to issue a passport when the citizen of Ukraine is abroad for permanent residence, a person must submit, inter alia, a domestic identity document with a stamp certifying that he or she has annulled his or her registration of permanent place of residence in Ukraine. Moreover, in the case of departure abroad for permanent residence the corresponding note is made [a stamp “permanent place of residence”] in the passport with an indication of departure state.Order of the Ministry of Foreign Affairs of Ukraine no. 201 of 22 November 1999 on the approval of the procedure for the examination by the diplomatic missions or the consular offices of Ukraine abroad of requests submitted by citizens of Ukraine, who temporarily went abroad and subsequently decided to remain abroad as permanent residents (in force at the material time)

34.  The procedure approved by this Resolution provided that a citizen of Ukraine who went abroad temporarily, but decided to remain abroad on a permanent basis, could receive a “permanent residence” stamp in his or her passport upon completion of certain formalities.Other acts

35.  According to a letter of the Ministry of Foreign Affairs of Ukraine addressed to the Customs Service of Ukraine on 18 November 2005, proof of permanent residence outside Ukraine is a passport with a “permanent residence” stamp included therein.

THE LAWALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

36.  The applicant complained under Article 1 of Protocol No. 1 of the alleged infringement by the State authorities of his property rights to a car. In particular, he stated that he had not breached any legal provisions and there had been an inconsistency between the provisions of the Code on Administrative Offences and the Customs Code, which should have been interpreted in his favour so that the administrative offence proceedings against him be terminated as time‑barred. Moreover, he claimed that the imposition of the confiscation measure based on the above legal provisions without any time-limits had been disproportionate.

The provision relied on reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

37.  The Government contested that argument.Admissibility

38.  The Court notes that there is no dispute between the parties that the car constituted a “possession” and its confiscation by the authorities amounted to an interference with the applicant’s property rights within the meaning of Article 1 of Protocol No. 1.

39.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.MeritsThe parties’ submissions

40.  The Government submitted that in the present case there had been no violation of the applicant’s right guaranteed by the Convention and its Protocols.

41.  They maintained that the interference was lawful. In particular, they stated that while passing the customs examination the applicant had submitted a duly signed customs declaration indicating that his permanent place of residence was Spain. However, with reference to the letter of the Ministry of Foreign Affairs of Ukraine of 18 November 2005 (see paragraph 35 above) they submitted that the applicant could not claim to be a permanent resident of Spain in the absence of the relevant stamp in his passport indicating his “permanent residence” status. Moreover, the Government stated that the applicant had concealed information from the customs officer that his permanent place of residence had in fact been registered in Ukraine. The Government further held that they disagreed with the applicant’s statement that it was customs officer T., who had been fully responsible for the mistake that occurred since the applicant himself had signed the declaration which contained false information about his place of residence and had been notified about the negative consequences of declaring false information. The applicant was therefore found guilty under Article 351 of the Customs Code of breach of the customs regulations given his failure to declare his place of residence and his car was confiscated.

42.  The Government further submitted that although Article 38 of the Code on Administrative Offences had established certain time-limits for the application of penalties, pursuant to Articles 322 taken in conjunction with Article 328 of the Customs Code the imposition of the confiscation measure had still been possible regardless of the time-limits. Therefore, confiscation of the applicant’s car after the expiration of the time-limits set out in the impugned Article of the Code on Administration offences had been performed in accordance with the law which was accessible and foreseeable.

43.  Finally, the Government submitted that the confiscation measure was performed in the public interest, was compatible with the proportionality requirement provided by Article 1 of Protocol No. 1 and did not impose an excessive burden on the applicant.

44.  The applicant submitted that the confiscation of his car had been unlawful. In particular, he had not breached any legal provisions since it was the customs officer who had allowed him to bring the car temporarily onto Ukrainian territory. The applicant further contended that domestic law had not been accessible, precise and foreseeable in its application. In particular, there had been inconsistency between the provisions of the Code on Administrative Offences and the Customs Code, which should have been interpreted in his favour so that the administrative offence proceedings against him were to be terminated as time‑barred. In respect of the latter point the applicant also submitted that the imposition of the confiscation measure based on the above legal provisions without any time-limits had been disproportionate.The Court’s assessment

(a)   General principles

45.  The Court emphasises that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful (see Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II). The requirement of lawfulness, within the meaning of the Convention, demands compliance with the relevant provisions of domestic law and compatibility with the rule of law, which includes freedom from arbitrariness (see Kushoglu v. Bulgaria, no. 48191/99, §§ 49-62, 10 May 2007). The concept of lawfulness also refers to the quality of the law in question, requiring that it be accessible to the persons concerned, precise and foreseeable (see Beyeler v. Italy [GC], no. 33202/96, § 109, ECHR 2000‑I).

46.  Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised. The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Béláné Nagy v. Hungary [GC], no. 53080/13, § 115, 13 December 2016).

(b)   Application of the above principles to the present case

(i)  Compliance with the principle of lawfulness

47.  The Court notes that the confiscation measure in the present case had a legal basis in domestic law, namely, Article 351 of the Customs Code of Ukraine which established sanctions for breaching the customs rules; and Article 322 in conjunction with Article 328 of the Customs Code which allowed for the imposition of this measure regardless of when the offence had been committed.

48.  The Court further notes that the applicant was sanctioned for the evasion of payment of customs duties due to the alleged untrue information in the customs declaration concerning his resident status. However, it appears that one of the main issues in dispute in the present case was the determination of whether or not the applicant was indeed a resident of Ukraine. The Court notes that the authorities came to this conclusion based on the fact that the applicant had his permanent place of residence registered in Ukraine and did not have a “permanent residence” stamp in his passport.

49.  In this respect the Court observes that the question is whether the relevant legislation in force at the material time was sufficiently foreseeable for the applicant who had been residing in Spain on lawful grounds to correctly determine his place of residence for the purposes of customs duties declaration, i.e. to conclude that the absence of the “permanent residence” stamp in his passport and registration of his place of residence in Ukraine did not allow him to declare in the customs declaration that his permanent place of residence was in Spain.

50.  According to the Government’s observations, the conclusion that the “permanent residence” stamp in the passport was a decisive element for establishing the applicant’s residence in Ukraine was reached based on a letter of the Ministry of Foreign Affairs of Ukraine of 18 November 2005 (see paragraph 35 above). However, the Government provided neither a copy of this letter, nor any proof that this letter had been officially published and accessible to the applicant before he had submitted his customs declaration. In view of the absence of proof of its official publication and given that it was addressed to another State authority, the Court concludes that this letter had been an internal document and had not been available to the applicant before he submitted his customs declaration. From the analysis of other statutory provisions referred to by the domestic authorities in this case, it is not clear that, for the purpose of customs formalities, the absence of the “permanent residence” stamp in the passport and the place of residence registered in Ukraine were decisive elements to conclude that a person had residency in Ukraine.

51.  At this juncture the Court reiterates that the lack of a sufficiently precise and foreseeable statutory provision may be remedied by the domestic courts by giving a clear and precise interpretation of the provision (see Vijatović v. Croatia, no. 50200/13, § 54, 16 February 2016). The Court notes that according to the Resolution of the Cabinet of Ministers of Ukraine no. 231 of 31 March 1995 on the approval of the procedure for the issue of a passport of a citizen of Ukraine and travel documents of a child, their temporary suspension and seizure (see paragraph 33 above), in the event of departure abroad for permanent residence a corresponding note in the individual’s passport is made indicating the State of departure. However, the Court notes that the above Resolution did not associate the presence of such a note with the determination of the resident status of a person. Even assuming that the uncertainty in domestic law was remedied by the domestic courts, who have given their own interpretation of domestic law, the element of uncertainty in domestic law, and the considerable latitude it affords the authorities, should be taken into account when determining whether the measure complained of struck a fair balance (see Beyeler, cited above, § 110).

52.  For this reason, the Court will analyse whether there has been a legitimate reason for interfering with the applicant’s rights, and if so whether the courts, while interpreting domestic law and resolving the case, have managed to strike a fair balance between the owner’s rights and the interests of the community.

(ii)  The reason for the interference

53.  The Court accepts that the interference pursued a legitimate aim in the general interest, namely to secure the payment of taxes, other contributions, compensation of incurred damages and prevention of tax evasion.

(iii)  Whether there was a fair balance

54.  The remaining question for the Court to determine is whether the interference struck the requisite fair balance between the protection of the right of property and the requirements of the general interest, taking into account the margin of appreciation left to the respondent State in that area. The Court further notes that the requisite balance will not be achieved if the property owner concerned has had to bear “an individual and excessive burden”. Moreover, although the second paragraph of Article 1 of Protocol No. 1 contains no explicit procedural requirements, the Court must consider whether the proceedings as a whole afforded the applicant a reasonable opportunity to put his case to the competent authorities with a view to enabling them to establish a fair balance between the conflicting interests at stake (see Sadocha v. Ukraine (merits), no. 77508/11, § 27, 11 July 2019).

55.  The Court reiterates that in order to be proportionate, the interference should correspond to the severity of the infringement and the sanction to the gravity of the offence it is designed to punish – in the instant case, the evasion of payment of customs duties, which originated from the alleged failure to properly declare the applicant’s place of residence (see Gyrlyan v. Russia, no. 35943/15, § 28, 9 October 2018; Gabrić v. Croatia, no. 9702/04, § 39, 5 February 2009).

56.  In this respect the Court notes that when crossing the border the applicant presented documents showing his right to reside in Spain, his passport and customs declaration, in which the applicant indicated that he resided in Spain (see paragraph 15 above) to customs officer, T.

57.  On the basis of the documents presented by the applicant during the customs check, customs officer T., decided that the latter was entitled to bring the car onto the customs territory of Ukraine, as a non-resident of Ukraine, for a certain period without payment of customs duties.

58.  However, more than a month after the applicant had been allowed to enter the customs territory of Ukraine, his car was seized for a breach of the customs rules and customs officer, T., was disciplined for not correctly applying the customs regulations in the applicant’s case. The authorities acknowledged that insufficient training and an inappropriate attitude towards the performance of his duties were the reasons for such an incorrect application of the customs regulations (see paragraph 16 above). In view of the aforementioned, and considering the uncertainty of the domestic law as to the question of establishment of the applicant’s place of residence (see paragraph 51 above), the Court considers that it is questionable that the applicant was deliberately seeking to circumvent the customs regulations when declaring his place of residence (see Sadocha, cited above, § 30).

59.  The Court further notes that there was no indication that the applicant had imported prohibited goods, had ever been convicted for another customs-related offence or that he had owned the car unlawfully. On that latter ground the present case can also be distinguished from cases in which the confiscation measure extended to assets which were presumed to be of unlawful origin (see Raimondo v. Italy, 22 February 1994, § 29, Series A no. 281-A; Arcuri and Others v. Italy (dec.), no. 52024/99, 5 July 2001; and Riela and Others v. Italy (dec.), no. 52439/99, 4 September 2001) or to have been used for unlawful activities (Butler v. the United Kingdom (dec.), no. 41661/98, 27 June 2002).

60.  As to the court proceedings at national level, the Court observes that the domestic authorities based their decisions essentially on the following elements: (i) at the time of the border-crossing he continued to be registered as a resident in the city of Berdyansk; (ii) he had not been registered permanently or temporarily in a Ukrainian consulate abroad and (iii) T. had incorrectly applied the customs regulations in the applicant’s case (see paragraphs 16, 18 and 21 above). However, the authorities did not address the applicant’s detailed arguments on appeal as to the proportionality of the interference when imposing the confiscation measure (see paragraph 19 above). Accordingly, the Court finds that the scope of the review carried out by the domestic courts was too narrow to satisfy the requirement of seeking the “fair balance” inherent in the second paragraph of Article 1 of Protocol No. 1 (see Sadocha, cited above, § 33 and Gyrlyan, cited above, § 30).

61.  The Court finally notes that the wording of Article 351 of the Customs Code (in force at the material time) under which the applicant was found guilty allowed domestic courts a certain degree of discretion for the application of penalties. In particular, it provided that the prohibited actions shall be the reason for imposing a fine, the confiscation of goods, including the confiscation of vehicles. However, given that the time-limits for the imposition of penalties other than confiscation had expired at the time of the consideration of the applicant’s case, in the light of Articles 322 and 328 of the Customs Code the domestic courts could apply the confiscation measure only. In the Court’s view, narrowing a choice of a sanction to a confiscation measure without setting any time-limits destroys the very essence of the requisite fair balance between the requirements of the general interest and the protection of an individual’s right to property (see, mutatis mutandis, Gyrlyan, cited above, § 31 in which the domestic legislation prevented the courts from considering a more lenient sanction than a fine equivalent to at least the undeclared amount or confiscation of the undeclared cash).

62.  In these circumstances, taking the above considerations accumulatively, the Court concludes that the impugned confiscation was disproportionate to the offence committed and thus imposed an excessive burden on the applicant.

There has accordingly been a violation of Article 1 of Protocol No. 1.APPLICATION OF ARTICLE 41 OF THE CONVENTION

63.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

64.  The applicant claimed 9,881.56 euros (EUR) which is the equivalent of 76,088 Ukrainian hryvnias (UAH) the car was evaluated according to the report of the Berdyansk Branch of the Zaporizhzhya Chamber of Commerce and Industry of 7 July 2008 (see paragraph 12 above) at the exchange rate applicable at the date of events in respect of pecuniary damage. The applicant also claimed EUR 7,325.31 in respect of non‑pecuniary damage.

65.  Reiterating their position on the inadmissibility of the applicant’s claims the Government stated that these claims were to be rejected as unsubstantiated.

66.  The Court reiterates that there must be a clear causal connection between the pecuniary damage claimed by the applicant and the violation of the Convention (see, for instance, Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 81, ECHR 2014 and the cases cited therein). The Court has found that the car was confiscated from the applicant in breach of Article 1 of Protocol No. 1 to the Convention. The Court further notes that the market value of the car was established by the report of 7 July 2008 (see paragraph 12 above), to which domestic authorities made references themselves (see paragraph 14 above) to the amount of UAH 76,088 (at the material time EUR 9,881.56). It therefore accepts the applicant’s claim in respect of pecuniary damage and awards him EUR 9,881.56 under this head, plus any tax that may be chargeable on that amount.

67.  Deciding on an equitable basis, the Court awards the applicant EUR 900 in respect of non-pecuniary damage.Costs and expenses

68.  The applicant did not submit a claim for costs and expenses.Default interest

69.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of 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 currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 9,881.56 (nine thousand eight hundred and eighty-one euros and fifty-six cents), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii)  EUR 900 (nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan BlaškoSíofra O’Leary
Deputy Registrar President

Full & Egal Universal Law Academy