CASE OF RAYCHENKO AND OTHERS v. UKRAINE

FIFTH SECTION

CASE OF RAYCHENKO AND OTHERS v. UKRAINE

(Applications nos. 64144/17 and 14 others –

see appended list)

JUDGMENT

STRASBOURG

23 January 2025

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

In the case of Raychenko and Others v. Ukraine,

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

 Diana Sârcu, President,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 19 December 2024,

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

PROCEDURE

1.  The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2.  The Ukrainian Government (“the Government”) were given notice of the applications.

THE FACTS

3.  The list of applicants and the relevant details of the applications are set out in the appended table.

4.  The present cases concern the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention. They argued that the imposition of fines and confiscation of the entire amount of their lawfully acquired money exceeding the permitted limit, due to their failure to declare it to customs authorities, had constituted a disproportionate measure.

THE LAW

5.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

6.  The applicants complained principally of the disproportionate sanctions in customs cases – confiscation of the undeclared cash and imposition of a fine. They relied, expressly or in substance, on Article 1 of Protocol No. 1.

7. The applicable principles concerning confiscation of property were summarised in Gabrić v. Croatia (no. 9702/04, §§ 31-33, 5 February 2009).

8.  In the leading case Yaremiychuk and Others v. Ukraine (nos. 2720/13 and 6 others, §§ 21-36, 9 December 2021) the Court has already found a violation in respect of issues similar to those in the present case.

9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. In particular, the Court concludes that the interference with the applicants’ property rights imposed a disproportionate burden on them in view of the application of confiscation of all excess cash as the sanction, in addition to a fine.

10.   These complaints are therefore admissible and disclose a breach of Article 1 of Protocol No. 1.

11.   The Court reiterates in this respect that finding of a violation does not imply that the applicants did not have to bear any responsibility for the breach of domestic law they had committed by failing to declare the cash (see Sadocha v. Ukraine, no. 77508/11, § 43, 11 July 2019).

12.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Yaremiychuk and Others, cited above, §§ 45-50), the Court considers it reasonable to award the sums indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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.

Done in English, and notified in writing on 23 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Viktoriya Maradudina Diana Sârcu
 Acting Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 1 of Protocol No. 1 to the Convention

(disproportionate sanctions in customs cases)

No.

Application no.

Date of introduction

Applicant’s name

Year of birth

Representative’s name and location

Specific circumstances of

the case

Sanction imposed

Fine, if any, in UAH

(converted to EUR)

Final domestic decision

Amount awarded for pecuniary damage per applicant

(in euros)[1]

Amount awarded for costs and expenses per application

(in euros)[2]

64144/17

18/08/2017

Yuriy Sergiyovych RAYCHENKO

1987

The applicant failed to declare to Customs Service the money exceeding the permissible limit of 10,000 euros (EUR)

 while leaving Ukrainian territory. As a result, EUR 10,400 were confiscated and a fine of 1700 Ukrainian hryvnas (UAH) (approximately EUR 57) was imposed on the applicant by the Kyiv Court of Appeal’s final decision of 21/03/2017.

Confiscation:

EUR 10,400

Fine: UAH 1,700

(EUR 57)

Kyiv Court of Appeal, 21/03/2017

10,400

-

73161/17

02/10/2017

Igor Anatolyevich BATISHCHEV

Danilenko Tatyana Vladimirovna

Kyiv

On 25/10/2016 the applicant failed to declare to Customs Service the money exceeding the permissible limit of EUR 10,000 while leaving Ukrainian territory. As a result, 5,100 US dollars (USD) (EUR 4,687) were confiscated and a fine of UAH 1,700 (EUR 60) was imposed on the applicant by the Kyiv Court of Appeal’s final decision of 03/04/2017.

Confiscation:

USD 5,100

(EUR 4,687)

Fine: UAH 1,700

(EUR 60)

Kyiv Court of Appeal, 03/04/2017

4,687

250

2625/18

04/01/2018

Yevgen Valeriyovych LASHCHENKO

1980

The applicant on 16/09/2017 failed to declare cash: USD 27,000, 800 Russian rouble (RUB) and UAH 55 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 19/12/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 15,200

(EUR 12,885)

Fine: UAH 1700

(EUR 52)

Kyiv Regional Court of Appeal, 19/12/2017

12,885

-

13534/18

06/03/2018

Yansong LIU

1968

Brodovskyy Yevgeniy Oleksandrovych

Kyiv

The applicant on 10/09/2017 has failed to declare cash: USD 66,300 (EUR 55,075) and RUB 24,150 (EUR 349) at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 08/12/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 54,800

(EUR 46,495)

Fine: UAH 1,700

(EUR 54)

Kyiv Regional Court of Appeal, 08/12/2017

46,495

250

15644/18

20/03/2018

Oshri Khagay KOEN

1978

The applicant on 22/06/2017 failed to declare cash: USD 1,700, 7,090 Israeli new shekel (ILS), and EUR 11,840 out of a total of EUR 21,840 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 21/09/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 1,700

(EUR 1,420) and

ILS 7,090

(EUR 1,687) and

EUR 11,840

Fine: UAH 1,700

(EUR 54)

Kyiv Regional Court of Appeal, 21/09/2017

14,947

-

17260/18

21/03/2018

Christiaan Leonard BOUWER

1967

Gavrylyuk Yuliya Igorivna

Odesa

The applicant on 28/05/2017 failed to declare cash: UAH 2,629, EUR 90,240 out of a total of EUR 100,240 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 22/09/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

UAH 2,629

(EUR 83) and

EUR 90,240

Fine: UAH 1,700

(EUR 54)

Kyiv Regional Court of Appeal, 22/09/2017

90,323

250

45063/18

11/09/2018

Yevgen Volodymyrovych YURCHENKO

1970

Mykhaylenko Vira Volodymyrivna

Kyiv

On 01/02/2018 the applicant signed a contract of irrevocable financial aid donating EUR 100,000 to the Charitable foundation Dukhovna Osvita.

On 06/02/2018 the applicant arrived at the Boryspil airport, carrying with him EUR 100,000 and USD 225. The applicant alleges that he lost his way in a crowd and entered the “green corridor” without declaring the money. The customs officers seized EUR 90,000, USD 225 and imposed a fine of UAH 1,700.

On 13/06/2018 the Kyiv Regional Court of Appeal by its final decision found the applicant guilty of having committed an administrative offence and fined him to UAH 1,700, additionally confiscating the seized money. The court concluded that the confiscation would not create individual excessive burden considering the applicant’s earnings in 2017 and the intention of donating the money.

Сonfiscation:

EUR 90,000 and USD 225 (EUR 187)

Fine: UAH 1,700

(EUR 54)

 Kyiv Regional Court of Appeal, 13/06/2018

90,191

250

9754/19

11/01/2019

Oleg KORZHOV

1968

Chornyy Oleksiy Vitaliyovych

Odesa

The applicant on 15/03/2018 failed to declare cash USD 68,500 at the Odesa airport while choosing the “green corridor” for border crossing. On 13/07/2018 the Odesa Regional Court of Appeal upheld the 1st instance court judgment finding the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

EUR 58,500

Fine: UAH 1,700

(EUR 54)

Court of Appeal of Odesa Region, 13/07/2018

58,500

250

28702/19

18/05/2019

Tarik Zeyyad KUTISHAT

1992

Kormushyna Olga Ivanivna

Kyiv

The applicant on 20/08/2018 failed to declare cash USD 16,900 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 19/11/2018 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 5,510

(EUR 4,825)

Fine: UAH 1,700

(EUR 51)

Court of Appeal of Kyiv Region, 19/11/2018

4,825

250

46770/19

25/08/2019

Alexandre CONESA PUEYO

1972

Kostenko Iryna Anatoliyivna

Kyiv

The applicant on 05/12/2018 failed to declare cash USD 30,300 (EUR 26 649) at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 28/03/2019 the Kyiv Regional Court of Appeal upheld in part the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 18,900

(EUR 16,784)

Fine: UAH 1,700

(EUR 63)

Court of Appeal of Kyiv Region, 28/03/2019

16,784

250

62677/19

23/11/2019

Pavlo Igorovych SHVETS

1986

On 21/12/2018 the applicant had failed to declare cash of USD 2,300 (EUR 2,060) out of a total of USD 13,700 (EUR 12,275) at the Zaporizhzhia airport while choosing the “green corridor” for border crossing. On 23/05/2019 the Zaporizhzhia Court of Appeal found the applicant guilty of a breach of the customs rules (Article 471 of the Customs Code) and ordered confiscation of the undeclared amount of cash combined with a fine.

Confiscation:

USD 2,300

(EUR 2,060)

Fine: UAH 1,700

(EUR 57)

Zaporizhzhia Court of Appeal, 23/05/2019

2,060

2868/20

28/12/2019

Oleg Sergiyovych SHARAPOV

1994

Dorogin Kostyantyn Yuriyovych

Kyiv

On 31/01/2019 the applicant had failed to declare cash of USD 4,600 (EUR 4,083) out of a total of USD 16,000 (EUR 14,203) at the Kyiv airport while choosing the “green corridor” for border crossing. On 12/07/2019 the Kyiv Court of Appeal found the applicant guilty of a breach of the customs rules (Article 471 of the Customs Code) and ordered confiscation of the undeclared amount of cash combined with a fine.

Confiscation:

USD 4,600

(EUR 4,083)

Fine: UAH 1,700

(EUR 58)

Kyiv Court of Appeal, 12/07/2019

4,083

250

7974/20

31/01/2020

Andriy Leonidovych MYASNIKOV

1967

Tyran Oleksandr Viktorovych

Boryspil

On 20/09/2019 the applicant failed to declare cash of USD 7,200 (EUR 6,505) out of a total of USD 18,266 (EUR 16,504) at the Boryspil airport while choosing the “green corridor” for border crossing. On 19/11/2019 the Kyiv Court of Appeal found the applicant guilty of a breach of the customs rules (Article 471 of the Customs Code) and ordered confiscation of the undeclared amount of cash combined with a fine.

Confiscation:

USD 7,200

(EUR 6,505)

Fine: UAH 1,700

(EUR 63)

Kyiv Court of Appeal, 19/11/2019

6,505

250

9206/21

08/02/2021

Oleksandr Grygorovych SHEVCHUK

1965

Boychenko Yegor Leonidovych

Strasbourg

The applicant on 21/12/2019 failed to declare cash: USD 20,800 and EUR 3,000 at the Zhulyany airport in Kyiv while choosing the “green corridor” for border crossing. On 21/09/2020 the Kyiv Court of Appeal partially upheld the 1st instance court judgment finding the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 13,030

(EUR 11,002)

Fine: UAH 1,700

(EUR 52)

Kyiv Court of Appeal, 21/09/2020

11,002

250

21783/21

15/04/2021

Vitaliy Mykhaylovych DIDUKH

1985

Kristenko Andriy Anatoliyovych

Calgary

The applicant on 24/06/2020 failed to declare cash: USD 81,900 at the customs post “Krakovets” on the border with Poland while choosing the “green corridor” for border crossing. On 02/12/2020 the Lviv Court of Appeal upheld the 1st instance court judgment finding the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.

Confiscation:

USD 70,600

(EUR 58,847)

Fine: UAH 1,700

(EUR 51)

Lviv Court of Appeal, 02/12/2020

58,847

250

[1] Plus any tax that may be chargeable to the applicants.

[2] Plus any tax that may be chargeable to the applicants.