GOLEBIEWSKA v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43153/08
by Agnieszka GOŁĘBIEWSKA
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 17 May 2011 as a Chamber composed of:

Ljiljana Mijović, President,
Nicolas Bratza,
Lech Garlicki,
Sverre Erik Jebens,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
Fatoş Aracı, Deputy Section Registrar

Having regard to the above application lodged on 23 August 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Agnieszka Gołębiewska, is a Polish national who was born in 1966 and lives in Ożarów Mazowiecki, Poland. The United Kingdom Government (“the Government”) were represented by their Agent, Ms L. Dauban, of the Foreign and Commonwelath Office. The Polish Government, who had made use of their right to intervene under Article 36 of the Convention, were represented by Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

On 27 January 2000, the applicant’s Mercedes car was stopped by Customs officers on arrival in the United Kingdom. She was in Poland at the time. The driver of the car was P.T., described by the applicant as her friend. Customs officers carried out a search. In the car they found a large number of cigarettes of Russian origin in luggage and in different parts of the vehicle, including a space which had been created by substantially reducing in size the vehicle’s petrol tank by converting to liquid petroleum gas (“LPG”). The Customs seized the cigarettes and the vehicle as liable to forfeiture under section 139 of the Customs and Excise Management Act 1979 (“CEMA”). P.T. was arrested and charged with being knowingly concerned in the fraudulent attempt at evasion of excise duty contrary to section 170(2) of CEMA. He pleaded guilty and was sentenced to four months’ imprisonment.

The Consulate General of the Republic of Poland in London wrote to the Customs on 2 February 2000 asking for information about the vehicle, stating that it was the applicant’s car which had been lent to P.T. and referring to his arrest. The applicant visited the Customs’ offices on 17 February 2000. She asked for the vehicle to be returned to her and was told that it had been seized by the Customs and would not be returned.

On 18 February 2000 the Customs’ decision not to return the vehicle was communicated to the Polish Consulate by the team leader of the excise verification team. The letter stated that “the vehicle was adapted for smuggling by cutting down the petrol tank to a fraction of its proper size and the consequent space created was used to conceal a large quantity of excisable goods” and that section 88 CEMA applied to the case and provided for the relevant authority to seize the vehicle. The applicant had thirty days to challenge the legality of the seizure and the letter advised that previous correspondence and the applicant’s personal appearance at the Customs’ offices had been taken as such a challenge and that a decision had been made accordingly. The team leader’s decision was to recommend that the vehicle should not be offered for return. The decision letter cited the need to protect revenue and legitimate trade in the United Kingdom by deterring and detecting fraud and other irregularities and encouraging compliance with procedures established to control movements of excise goods. It stated that the normal policy where the Customs asserted that a vehicle had been adapted for smuggling and that section 88 CEMA applied was to refuse to return seized goods. There were no exceptional circumstances in this case which would justify a departure from this policy. The letter concluded by advising that an appeal against the decision could be made by writing to the review officer within 45 days.

By letter dated 20 March 2000 to the review officer, the applicant appealed against the decision of the excise verification team and requested a review. The stated grounds of appeal were chiefly that the adaptation to the petrol tank was not for the purposes of smuggling but for the purposes of “the change of the vehicle’s propulsive fuel from petrol into gas”, which had been carried out solely in order to achieve economy, gas being much cheaper than petrol in Poland. Supporting documents were provided.

By letter dated 16 May 2000, the review officer confirmed the decision not to return the vehicle. He based his decision on the fact that (1) the vehicle was used by P.T. for smuggling; (2) the applicant was a business associate of P.T.; (3) the purpose of the change to the petrol tank was to release space for smuggling; (4) the Commissioners’ policy was not to restore a vehicle seized pursuant to section 88 CEMA.

The applicant subsequently appealed to the VAT and Duties Tribunal (“the first tribunal”) arguing that the decision was unreasonable. In order to assess the reasonableness of the decision, the first tribunal was required to make certain findings of fact. A hearing took place over four days, two in February 2002 and two in February 2003. The applicant gave evidence through an interpreter. The first tribunal found as facts that P.T. had used the car for smuggling; that P.T. had borrowed the car for the purpose of using it for smuggling; that the applicant was aware that P.T. had borrowed the car for such a purpose; that the purpose of the change to the petrol tank was to release space for smuggling; and that the applicant was not aware that the purpose of the change to the petrol tank was to release space for smuggling.

On 20 March 2003, the first tribunal directed that a further review be conducted, because the review officer had made an error of law in limiting his review to the reasonableness of the Commissioners’ decision instead of considering the matter afresh, as he was required to do.

As regards the applicant’s argument that the forfeiture of her vehicle violated Article 1 of Protocol No. 1, the first tribunal noted (at paragraphs 54 to 56):

“We understand the point taken under art. 1 of the First Protocol to be in effect a challenge to the proportionality of the Commissioners’ decision not to restore the car to the Appellant. In her submissions, Ms. McCue [for the applicant] fairly conceded that if the car had been adapted for the purposes of smuggling, then it would be in the public interest to seize the car. We take that to be a concession that in those circumstances it would not be disproportionate for the Commissioners to refuse to restore the car ...

We have found that the car was adapted for smuggling, but by reason of the hole being made in the panel behind the back seat by [P.T.], without the knowledge of the Appellant. However, we have also found that the Appellant lent her car to [P.T.], being aware that he was borrowing it for the purpose of smuggling. We bear in mind that the Appellant (in the company of [P.T.] and Mr. [G.]) had travelled to the United Kingdom in the car less than two months before the seizure and had on that occasion been stopped by Customs. In these circumstances, it seems to the Tribunal that the Appellant is almost in the same position as someone who deliberately uses her car to further a fraudulent venture in the knowledge that if she is caught, her car will be liable to forfeiture and who cannot reasonably be heard to complain if she loses her vehicle ...

... The submission as to exceptional hardship, which has been advanced on behalf of the Appellant, is that she needed the car for her work. It is not clear to the Tribunal that this submission was originally made to the Customs so that [the review officer] could take it into account in making his decision. However that may be, we do not doubt that the Appellant did need the car for her work (and that the other factors ... apply, viz: that she is a single mother, that she is continuing to pay loan instalments on the car, and that she has to pay school fees in respect of her son) but it seems to the Tribunal that these factors may not carry any significant weight in the necessary balance against the public interest in removing from circulation a car adapted for smuggling, which has been used for smuggling, having been lent by the owner to the smuggler in the awareness that smuggling was the smuggler’s purpose in borrowing the car. The Tribunal will direct a further review ... and the question of proportionality will need to be considered afresh.”

The applicant appealed to the High Court to challenge the finding that she knew of P.T.’s intention to use the car for smuggling.

In the meantime, a second review officer reconsidered the matter as instructed by the first tribunal and, by letter dated 30th May 2003, confirmed the previous decision to refuse to return the vehicle. No further appeal was lodged against the decision of the review officer.

On 27 January 2004, the applicant’s appeal against the findings of fact made by the first tribunal was dismissed by Mr Justice Laddie in the High Court.

The applicant applied for leave to appeal to the Court of Appeal. Permission to appeal was granted on 25 August 2004, limited to the question of whether the first tribunal gave adequate reasons for its finding of fact that the applicant knew of the intention to use the car for smuggling, and the related questions of the burden of proof and the standard of proof.

On 6 May 2005, the Court of Appeal allowed the appeal on the ground that the tribunal had erred in law in failing to give adequate reasons for its finding that the applicant had known of P.T.’s intention to use the car for smuggling. In its judgment, the court noted that the applicant and P.T. had given evidence before the first tribunal through an interpreter. The matter was remitted for re-hearing before a differently constituted tribunal (“the second tribunal”).

On 19 March 2007, the rehearing took place. The sole question in issue before the second tribunal was whether the applicant knew or ought to have known of P.T.’s intention to use her car for smuggling. On the same date, the second tribunal handed down its decision. In particular, it concluded that it was not satisfied that the applicant had not known of, or had not “turn[ed] a blind eye to” P.T.’s intentions with regard to the car and his visit to the United Kingdom.

The applicant appealed to the High Court, arguing that the second tribunal was not entitled to hear evidence regarding the conversion of the car as the first tribunal had found that she did not know that the conversion was to enable the car to be used in smuggling; that the length of time which had passed since the events to which the proceedings pertained meant that she could not have a fair hearing; and that the second tribunal had erred in law in not holding the Customs to a concession which it had made that the applicant did not know that P.T. planned to use the car to smuggle cigarettes.

On 26 February 2008, the High Court dismissed the applicant’s appeal. As regards her complaint that it was not possible to have a fair trial as a result of the passage of time, Mr Justice Warren found as follows:

“I comment that it is extraordinary that this point is taken at this stage of the proceedings without having been raised before or at the commencement of the hearing before the second tribunal, if not well before that. Mr Ley [for the applicant] suggests, I believe even on instructions, that Miss Calder [the applicant’s counsel at the second tribunal hearing] was simply not permitted to address the second tribunal because the chairman had required her to get on with the evidence.

That seems to me to be a fanciful suggestion. The idea that counsel was unable to get the second tribunal to listen to a submission which she wished to make to the effect that the proceedings should not continue because there could not be a fair hearing is one I find astonishing. Although Mr Ley, who was not at the hearing, tells me that this is what happened, Mr Beal who was there tells me that that was not the case at all. Rather, Miss Calder opened her case to some extent, but the chairman then indicated that the second tribunal had read enough beforehand and that it would be preferable to get on with the evidence. I have no actual evidence about what happened in contrast with statements from the Bar. In my judgment there is nothing in this aspect of the second ground of appeal.

Insofar as the merits of the second ground are concerned, the second tribunal dealt with this at paragraph 36 of the second decision where they said this:

‘We accept Miss Calder’s submission that it is very difficult for any witness to remember precisely events which happened seven years before. However, it is not as if Mrs Golobiewska was suddenly asked after seven years to recall those events. She had given evidence at the earlier tribunal which took place some two years after the event and in respect of which findings of fact were fully recorded and we find it inconceivable that Mrs Golobiewska was not properly reminded both about the previous tribunal proceedings, the proceedings in 2004 in the High Court and subsequently in the Court of Appeal in 2005. The fact that she did not choose to refresh her memory by looking at her statement of 2000 before appearing before us as we were told is the case, is no indication that prior to setting off for England she had not read any of the relevant papers or been asked to cast her mind back over events. She either knew or ought to have known exactly what this hearing was about and we find it very surprising that those representing her did not properly furnish her with the relevant papers to refresh her memory if that was the situation.’

The second tribunal clearly considered that a fair hearing was possible. Even if I might have reached a different conclusion myself sitting in their seats, which I hasten to add I would not have done, I can see no possible challenge to the second tribunal proceeding to give its decision notwithstanding the submission of Miss Calder, made for the first time in her written closing submissions after the end of the hearing.”

The High Court also dismissed the applicant’s other grounds of appeal. No application for leave to appeal to the Court of Appeal was made.

B. Relevant domestic law

The Customs and Excise Management Act 1979 (“CEMA”) regulates the power of Customs to seize a vehicle suspected of use in smuggling.

Section 88 CEMA provides as follows:

“Where–

...

(c) a vehicle is or has been within the limits of any port ...

while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that ship, aircraft or vehicle shall be liable to forfeiture.”

Similarly, section 141(1) CEMA provides:

“Without prejudice to any other provision of the Customs and Excise Acts 1979, where any thing has become liable to forfeiture under the customs and excise Acts–

(a) any ... vehicle ... which has been used for the carriage, handling, deposit or concealment of the thing so liable to forfeiture, either at a time when it was so liable or for the purposes of the commission of the offence for which it later became so liable; and

(b) any other thing mixed, packed or found with the thing so liable,

shall also be liable to forfeiture.”

Section 139(1) CEMA provides that:

“Any thing liable to forfeiture under the customs and excise Acts may be seized or detained by any officer or constable or any member of Her Majesty’s armed forces or coastguard.”

Section 152 CEMA provides for a discretion for the Commissioners to restore, subject to such conditions, if any, as they think proper, any thing forfeited or seized under the customs and excise Acts.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the length of the domestic proceedings.

She further complained under Article 6 § 3 (e) that she was not provided with an interpreter in the forfeiture proceedings.

Finally, under Article 1 of Protocol No. 1 to the Convention, she complained of the refusal of the authorities to return her car to her.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

By letter dated 21 February 2011 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the applicant’s complaint. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government of the United Kingdom regrets that there was an unreasonable delay in the way in which the domestic case proceeded. The Government therefore accepts that there was a violation of the reasonable time requirement under Article 6(1) of the Convention in relation to those proceedings.

As regards the unreasonable delay, the Government refers the Court to the specific circumstances of the case, which were wholly exceptional, relating as they did to the specific reasons as to why the various hearings involving the applicant were listed so far apart. The Government are confident that the procedures are in place to ensure that individuals receive a fair and public hearing within a reasonable time as laid down in Article 6(1) of the Convention and additionally that there are effective domestic remedies to deal with complaints regarding the length of proceedings, as required by Article 13 of the Convention.

In these circumstances, and having regard to the particular facts of the Applicant’s case, the Government declares that it hereby offers to pay ex gratia to the Applicant the amount of €3,000 (three thousand euros), which includes any legal costs and expenses, to be paid in pounds sterling to a bank account named by the Applicant within three months from the date of the striking-out decision of the Court pursuant to Article 37 of the ECHR. This payment will constitute the final settlement of the Applicant’s case. ”

In a letter of 7 April 2011 the applicant expressed the view that the Government’s declaration was unacceptable. She emphasised that the domestic proceedings had not established the truth, namely that P.T., and not she, had been responsible for the wrongdoing. She informed the Court that pursuing her complaints with the relevant authorities had resulted in a high rate of absence from her work, with the consequence that she was made redundant. She considered that Customs officials had obstructed justice by their failure to cooperate to establish the truth.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also recalls that in certain circumstances, it may strike out an application or part thereof under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

The Court has established in a number of cases its practice concerning complaints about the violation of Article 6 § 1 in respect of the right to a hearing within a reasonable time (see most recently McFarlane v. Ireland [GC], no. 31333/06, ECHR 2010‑... and the cases cited therein). Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

In view of the above, it appropriate to strike the applicant’s complaint regarding the length of the domestic proceedings out of the list.

II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (e) OF THE CONVENTION

In respect of the applicant’s complaint that she was not provided with an interpreter in the forfeiture proceedings, in violation of Article 6 § 3 (e), the Court recalls that proceedings concerning forfeiture of a vehicle used in smuggling are not criminal, within the autonomous meaning of the Convention (see AGOSI v. the United Kingdom, 24 October 1986, § 65 to 66, Series A no. 108; and Air Canada v. the United Kingdom, 5 May 1995, §§ 52 to 55, Series A no. 316‑A). Article 6 § 3 (e) is therefore inapplicable to the proceedings in question and the complaint is accordingly incompatible ratione materiae with the provisions of the Convention.

To the extent that the applicant’s complaint raises issues as to the general fairness of the trial under Article 6 § 1 as a result of the alleged absence of an interpreter, the Court observes that the applicant made no complaint in the context of the domestic proceedings about a lack of interpretation and that she has therefore failed to exhaust domestic remedies in respect of this complaint. The Court further observes that the decision of the Court of Appeal records that the applicant’s evidence to the first tribunal was heard through an interpreter. Accordingly, her allegation that she was denied an interpreter is unsubstantiated.

In the circumstances, the Court concludes that in so far as the applicant complains about the general fairness of the proceedings under Article 6 § 1, her complaint must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO.1 TO THE CONVENTION

As regards the applicant’s complaint that the confiscation of her car violated her rights under Article 1 of Protocol No. 1, the Court notes that the applicant raised this ground in the context of her appeal to the first tribunal against the decision of the review officer. The first tribunal examined her complaint under Article 1 of Protocol No. 1, but because it concluded that the review officer had erred in law, the matter was remitted to him to make a fresh decision, taking into account the need for proportionality. The applicant appealed the decision of the first tribunal, contesting the findings of fact made by the first tribunal. In the meantime, the review officer duly made a fresh decision, which was notified to the applicant on 30 May 2003. However, she did not seek to appeal the fresh decision taken by the review officer on the grounds that it was a disproportionate interference with her right to peaceful enjoyment of her possession. At no subsequent point in the proceedings before the High Court, the Court of Appeal or the second tribunal did the applicant seek to challenge the fresh decision of the review officer by relying on her rights under Article 1 of Protocol No. 1.

Accordingly, the Court concludes that the applicant has failed to exhaust domestic remedies in respect of her complaint under Article 1 of Protocol No. 1 complaint. Her complaint must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government’s declaration in respect of the applicant’s complaint under Article 6 § 1 of the Convention (length of proceedings) and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list in so far as it relates to the above-mentioned complaint;

Declares the remainder of the application inadmissible.

Fatoş AracıLjiljana Mijović
              Deputy RegistrarPresident

 

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