HARALAMBIDIS, HARALAMBIDIS-LIBERPA S.A. and LIBERPA LTD v. GREECE

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36706/97
by Ioannis HARALAMBIDIS, Y. HARALAMBIDIS-LIBERPA S.A. and LIBERPA Ltd
against Greece

The European Court of Human Rights (Second Section), sitting on 23 March 2000 as a Chamber composed of

MrM. Fischbach, President,
MrC.L. Rozakis,
MrG. Bonello,
MrsV. Strážnická,
MrP. Lorenzen,
MrA.B. Baka,
MrA. Kovler, judges,
andMrE. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 5 June 1997 and registered on 25 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a Greek citizen born in 1931 and residing in Nea Smirni in Attica. He used to be president of the board of directors and managing director of the first applicant company and manager of the second applicant company. The first applicant company, the full title of which is Yeoryios Haralambidis - Liberpa, Greek Corporation of International Transports and General Enterprises S.A. (anonimos eteria), was incorporated under Greek law. It was set up in 1973. The second applicant company, the full title of which is Liberpa International Road Transports Ltd (eteria periorismenis efthinis), was also incorporated under Greek law. It was set up in 1974. In the proceedings before the Court the three applicants are represented by Mr H. Tagaras, a lawyer practising in Athens.

A.The particular circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Between June 1980 and March 1981 the second applicant company transported cloth from outside the European Community into Greece and then to Italy. A few months later the customs authorities, suspecting that criminal offences had been committed in the course of this activity, asked for and were granted leave from the local public prosecutor to start a preliminary inquiry.

On 31 August 1982 and 8 August 1983 criminal proceedings were instituted against the first applicant and others for contraband, forgery and fraud against the State. The first applicant was in essence charged with bringing the cloth into Greece as goods in transit for Jordan and then changing its origin by using forged documents in order “to export” it to Italy as Greek and avoid paying customs duties. The first applicant company appeared as the Greek “exporter” of the cloth.

On 15 June 1984 and 22 June 1984 the customs authorities of Piraeus, considering that the first applicant in his capacity as representative of the two applicant companies had committed the customs offence of contraband, decided to impose on him fines of a total amount of 59,099,404 drachmas (approximately FrF 1,182,000). Fines of a total amount of 11,738,867 drachmas (approximately FrF 235,000) were also imposed on Mr K, an employee of the second applicant company and Mr Tz, a customs broker. The customs authorities also decided that customs duties of a total amount of 21,208,456 drachmas (approximately FrF 425,000) were due for the importation of the cloth in Greece. The first applicant as representative of the two applicant companies was to be jointly and severally liable for the payment of the fines imposed on Messrs K and Tz and of the customs duties (decisions Nos 3/83/15.6.84 and 1-5/22.6.84). The duties and fines in question were to be recovered in accordance with the Code for the Collection of Public Revenues.

The first applicant and the two applicant companies immediately lodged appeals (prosfiyes) in the Administrative Court (Diikitiko Protodikio) of Pireaus. The court requested the competent administrative authorities to compile a case-file, which they did on 15 July 1985.

The applicants then tried unsuccessfully to obtain various documents concerning the transport of the cloth in question from the customs authorities.

On 17 May 1985 the first applicant addressed himself to the investigating judge of Piraeus asking for his assistance in this matter. The investigating judge asked the customs authorities of Pireaus to provide the documents in question. On 20 May 1985 the authorities replied that some could not be found (VOLET 2 of TIR 0413929) while others did not concern the applicants (application for a reloading permit No 973). However, the applicants had already received a letter dated 15 May 1985 from the customs authorities of Evzones to the effect that the Evzones authorities had sent to the Piraeus authorities some of the documents that the Piraeus authorities could not find.

In the meantime the indictments chamber of the first instance criminal court (simvulio plimmeliodikon) of Piraeus decided that the first applicant should be tried by the three-member Court of Appeal (trimeles efetio) of Piraeus, sitting as a first instance court, for forgery and fraud and by the three-member first instance criminal court (trimeles plimmeliodikio) of Piraeus for contraband. Mr K and two others were indicted as well. The applicant and his co-accused appealed.

On 25 October 1985 the indictments chamber of the Court of Appeal (simvulio efeton) of Piraeus decided that the applicant and the others could not be tried for contraband because the cloth in question had technically never been imported into or exported from Greece. Greece had never been its destination, it had been brought into Greece in transit and had eventually left Greece for Italy. As a result, no customs duties were due to the Greek authorities and the crime of contraband could not have been committed. Nevertheless, the chamber decided that the applicant and his co-accused should be tried for forgery and fraud.

The trial commenced on 7 October 1987. The applicant testified, inter alia, that “he had gone to the customs office in Prato, Italy to ask for the documents but was told that he lacked locus standi and the matter was internal”. On 8 October 1987 the three-member Court of Appeal decided to adjourn the trial in order to obtain expert evidence on the question of forgery.

In November 1987 there was a fire on the premises of the first instance Administrative Court of Pireaus, which, as a result, had to be relocated.

The applicants’ appeals against the decisions of 15 June 1984 and 22 June 1984 of the customs authorities of Piraeus imposing customs duties and fines were heard on 20 June 1988, 21 November 1988 and 12 April 1989.

On 12 September 1988, 18 January 1989 and 31 May 1989 the three-member first instance Administrative Court (trimeles diikitiko protodikio) of Piraeus quashed the decisions of 15 June 1984 and 22 June 1984 of the customs authorities of Piraeus. The court considered that the first applicant had not committed the customs offence of contraband because the cloth had entered into Greece in transit and no customs duties were due to the Greek authorities. Moreover, the intention of the applicant was to defraud the Italian authorities and not to deprive the Greek authorities of income due (decisions Nos 1534/88, 1535/88, 76/89, 77/89, 1360/89 and 1361/89). The customs authorities appealed.

On 6 October 1989 the third applicant company closed down its operations.

On 30 December 1989 the three-member Court of Appeal of Piraeus acquitted the applicant of the forgery and fraud charges.

On 30 September 1991 the five-member Administrative Court of Appeal (pendameles diikitiko efetio) of Piraeus, by majority, decided to uphold the customs authorities' appeal. The court considered that the effect of the first applicant's and his collaborators' actions was to change the origin of the cloth into Greek. As a result, the cloth had technically been imported into Greece. However, no customs duties had been paid and, as a result, the customs offence of contraband had been committed. The court, however, reduced the amount of the fines to be paid by the first applicant in his capacity as representative of the two applicant companies to 40,282,648 drachmas (approximately FrF 806,000) and the global fine for which the first applicant was jointly and severally liable to 48,197,414 drachmas (approximately FrF 964,000). One judge disagreed. He considered that the contraband offence had not been committed and referred to the findings of the criminal court of appeal (decisions Nos 1833/95, 1834/91, 1835/91, 1836/91, 1837/91 and 1838/91).

The first applicant and the two applicant companies appealed in cassation to the Council of State (Simvulio Epikratias).

The appeals were set for hearing by the Second Chamber of the Council of State on 26 January 1994.

In the meantime, on 24 June 1992, the Council of State issued decision No. 2313/92 on an appeal in cassation by the applicants concerning a fine imposed by the customs authorities on another occasion. Two of the applicants appealed against decision No. 2313/92 before the Special Supreme Court (Anotato Idiko Dikastirio) on the ground that in another case the Court of Cassation (Arios Pagos) had interpreted the Customs Code in a different manner.

On 22 June 1993 the customs authorities ordered that the first applicant should not be allowed to travel out of Greece, because of his debts to the State.

On 26 July 1993 the first applicant requested the public prosecutor of Piraeus to order the customs authorities to give him certain documents. The prosecutor transmitted the applicant's request to the customs authorities of Piraeus, which complied. Among the documents provided by the customs authorities were the VOLETS 2 of TIR 438216 and TIR 8630463 that the applicants had requested in 1985.

In 1993 the applicant also obtained certain documents concerning the transport of the cloth in question from the Italian authorities.

On 16 December 1993 the applicants added to their grounds of appeal in cassation the following: The Greek customs authorities had given the wrong classification to the cloth in question. As a result, the applicants had been asked to pay higher duties and fines. The applicants had been able to establish the wrong classification of the cloth on the basis of documents they had obtained from the Italian authorities. It was the correspondence exchanged between the Greek and the Italian authorities that had made the applicants realise that it was necessary to contact the latter. The applicants had had access to the correspondence in question for the first time in 1993 following the intervention of the public prosecutor of Piraeus. If the applicants had had this information earlier they would have been able to include a relevant ground in their appeal to the first instance Administrative Court of Piraeus. Moreover, the Court of Appeal had not examined the applicants’ submission that the goods in question had been given a wrong classification by the customs authorities and that the customs duties had been calculated wrongly.

On 30 August 1994, due to a change in the legislation, the applicants’ appeals in cassation were transferred from the Second to the Sixth Chamber of the Council of State. A hearing was set for 13 February 1995, when it was adjourned until 19 June 1995.

On 31 May 1995 the Special Supreme Court rejected the appeal by two of the applicants against the Council of State’s decision No. 2313/92.

On 10 July 1995 the Council of State considered, on the one hand, that, insofar as the appeal had been lodged by the first applicant, it was inadmissible since the fines had been imposed on him in his capacity as representative of the applicant companies. On the other hand, the Council considered that the two applicant companies' appeal was admissible. However, it decided to reject it on the merits, in essence adopting the reasoning of the administrative court of appeal. The Council of State considered that the administrative courts were not bound by the decisions of the criminal courts because the two procedures were independent of each other. However, the administrative courts had to consider the findings of the criminal courts before reaching their conclusion. In the circumstances of the case, the Council of State found that, before reaching its decision, the administrative court of appeal had considered the findings of the indictments chamber of the criminal court of appeal, as evidenced by the opinion of the minority. Finally, the Council considered that the administrative court of appeal was right in not examining the ground of appeal concerning the classification of the cloth in question because it was not contained in a sufficiently concrete manner in the original appeals to the first instance administrative court (decisions Nos 3915/95, 3916/95, 3917/95, 3918/95, 3919/95 and 3920/95).

The text of the decisions of the Council of State was “finalised” on 9 December 1996.

Following the decision of the Council of State the first applicant company paid the sums specified in the decisions of the administrative court of appeal plus interest and default penalties as from the date of these decisions. The applicant company claims that it paid 188,222,039 drachmas (approximately FrF 3,765,000) in total. The Government claim that the company took advantage of the salutary provisions of law No. 2443/96 and only paid 130,424,579 drachmas.

A detailed account of the proceedings before the administrative courts appears in the appendix.

B.Relevant domestic law

According to domestic law, an appeal in cassation before the Council of State does not suspend the execution of a decision of the Administrative Court of Appeal.

COMPLAINTS

1.The applicants complain under Article 6 §§ 1 and 2 of the Convention and under Article 4 of Protocol No. 7 that the administrative courts upheld the fines imposed by the customs authorities for contraband although the first applicant had been acquitted of this offence by the criminal courts. They also complain that the courts upheld the fines on the basis of the case-file and without hearing any witnesses and without ordering an expert opinion on the question of forgery.

2.They also complain under Article 6 of the Convention that, because of the failure of the authorities to provide them with the evidence they had requested, they could not defend themselves adequately. In particular, the applicants submit that among the documents they had requested in 1985 were some VOLETS 2 and some reloading permits on the basis of which it could have been established that the customs offences had not been committed. On the basis of the VOLETS 2 it would also have been established that the Greek authorities had wrongly classified the goods in question. The applicants were able to establish the latter only in 1993 when they obtained certain documents from the Italian authorities. However, by that time they could not any longer raise the matter with the Greek courts, as evidenced by the decisions of the Council of State rejecting their corresponding ground of appeal as submitted out of time.

3.Moreover, the applicants complain under Article 6 of the length of the proceedings.

4.Finally, the applicants complain under Article 1 of Protocol No. 1 that, despite the above-mentioned violations, they had to pay the customs duties and fines plus interest.

PROCEDURE

The application was introduced on 5 June 1997 and registered on 25 June 1997.

On 21 October 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 30 March 1999, after two extensions of the time-limit fixed for that purpose. The applicants replied on 1 June 1999, also after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1.The applicants complain under Article 6 §§ 1 and 2 of the Convention and under Article 4 of Protocol No. 7 that the administrative courts upheld the fines imposed by the customs authorities for contraband although the first applicant had been acquitted of this offence by the criminal courts. They also complain that the courts upheld the fines on the basis of the case-file and without hearing any witnesses and without ordering an expert opinion on the question of forgery. Moreover, they complain under Article 6 of the Convention of the failure of the authorities to provide them with the evidence they had requested and of the length of the proceedings before the administrative courts.

Article 6 of the Convention provides as follows:

“1.  In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing within a reasonable time …

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.  Everyone charged with a criminal offence has the following minimum rights:

…

(b)  to have adequate time and facilities for the preparation of his defence;

…”

Article 4 § 1 of Protocol No. 7 provides as follows:

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

The Government submit that this part of the application has been submitted out of time. They point out that the decisions of the Council of State were issued on 10 July 1995 and the applicants complained to the Commission more than six months later, on 5 June 1997.

The applicants point out that, although the decisions to reject their appeals were indeed taken on 10 July 1995, their text was not “finalised” before 9 December 1996.

The Court considers that the six-month time-limit in Article 35 § 1 of the Convention must be calculated at the earliest from the date when the judgments of the Council of States were “finalised” (Eur. Court HR, the Papachelas v. Greece judgment of 25 March 1999, to be published in Reports of Judgments and Decisions 1999, §§ 30-31). It follows that the application cannot be rejected as out of time.

2.In so far as the first applicant complains about the unfairness and the length of the proceedings before the administrative courts and the alleged violation of the ne bis in idem principle, the Court notes that his appeal in cassation was rejected by the Council of State as inadmissible because the fines in question had not been imposed on him but on the applicant companies. It follows that the applicant was not in his individual capacity a party to the proceedings before the administrative courts. The Court, therefore, considers that he cannot claim to be a victim within the meaning of Article 34 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

3.In so far as the first applicant complains that the administrative courts violated the principle of the presumption of innocence, the Court recalls that this principle may be infringed not only by the court that “determines a criminal charge” against a person but also by other authorities. Courts that do not have to determine the question of guilt are also bound to respect the presumption of innocence (Eur. Court HR, the Allenet de Ribemont v. France judgment of 10 February 1995, Series A no. 308, p. 16, §§ 35 and 36).

The Court notes that the administrative courts, in examining whether the fines in question had been correctly imposed on the applicant companies, had before them the same set of facts as the criminal courts that had acquitted the first applicant. Moreover, the administrative courts assessed these facts in a different manner from the criminal courts. However, the Court notes that the administrative courts did not make any statements or findings on the first applicant’s guilt. The Court finds that there is no appearance of a violation of Article 6 § 2 of the Convention in so far as the first applicant is concerned.

This part of the application is, therefore, manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

4.In so far as the applicant companies complain under Article 6 §§ 1 and 2 of the Convention and under Article 4 of Protocol No. 7 that, despite the first applicant’s acquittal, the administrative courts upheld the fines imposed on them, the Court considers that the first issue to be addressed is whether the provisions in question applied to the proceedings complained of.

The Government argue that the proceedings before the administrative courts were not “criminal” in nature, as this notion is understood under the Convention. The Greek legislator wanted to make a clear distinction between the administrative and criminal sanctions imposed on contraband. The customs authorities, when imposing the fines in question, could not take into consideration the degree of culpability of the offender or his personality. They could only take into account the value of the merchandise illegally imported into Greece. Moreover, the United States Supreme Court in Hudson v. the United States found that the ne bis in idem principle did not apply to a similar situation because the administrative fines could not be considered criminal in nature.

The applicant companies argue that the proceedings before the administrative courts involved a determination of a criminal charge. The penalties they risked incurring were very heavy and punitive in nature. They could not be compared with the penalty at issue in the American case invoked by the Government.

The Court recalls that in order to determine whether an offence qualifies as “criminal” for the purposes of the Convention, the first matter to be ascertained is whether or not the text defining the offence belongs, in the legal system of the respondent State, to the criminal law; next, the nature of the offence and, finally, the nature and degree of severity of the penalty that the person concerned risked incurring must be examined, having regard to the object and purpose of Article 6, to the ordinary meaning of the terms of that Article and to the laws of the Contracting States (see Eur. Court HR, the Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V, p. 1831, § 32).

The Court, applying this test in its above-mentioned Garyfallou AEBE v. Greece judgment, considered that proceedings concerning the alleged contravention of rules on export and import trade involved “a determination of a criminal charge” on account of the severity of the maximum fine that the applicant company risked incurring – 15,050 German marks - and the powers that the authorities had under the Code for the Collection of Public Revenues to enforce payment (op. cit., p. 1831, § 34).

The Court notes that, similarly with Garyfallou AEBE, the applicant companies in the present case faced offences that were classified as administrative under domestic law. However, the fines actually imposed on each of the applicant companies for each offence were at least of the same order as the maximum fine that Garyfallou AEBE risked incurring. Moreover, domestic law gave the authorities the same powers of enforcement. The Court finds that the proceedings before the administrative courts in the present case involved a determination of a criminal charge, in so far as the applicant companies were concerned.

As for the rest, the Government point out that, at the time of the lodging of the application, Greece had not recognised the right of individual petition in respect of Protocol No. 7. Moreover, the applicant companies did not invoke their rights under the Convention before the domestic courts. In any event, the Government point out that the applicant companies were not parties to the criminal proceedings that ended in the first applicant’s acquittal. The decisions of the criminal courts were not binding on the administrative courts whose assessment of the facts of the case was the correct one.

The applicant companies submit that they argued before the Council of State that it was unconstitutional for the administrative courts not to take into account the decisions of the criminal courts. The test applied under Greek law, which allows for exceptions from the principles of the presumption of innocence and ne bis in idem was not compatible with the Convention. In any event, it is not for the Court to decide whether national law was correctly interpreted by the criminal or the administrative courts. The only relevant consideration is that the reasoning of the administrative courts goes directly against that of the criminal courts. Moreover, the administrative courts failed to discuss the decisions of the criminal courts.

The Court does not consider it necessary to address the Government’s arguments concerning the right to complain of a breach of Protocol No. 7 and exhaustion of domestic remedies. The Court recalls that the applicant companies were not involved in the criminal proceedings that ended in the first applicant’s acquittal. It follows that the different assessment that the administrative courts made of the facts that had been examined at the criminal trial could not give rise to a violation of Article 6 § 2 of the Convention and Article 4 of Protocol No. 7.

It follows that this part of the application is, therefore, manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

5.As for the applicant companies’ complaint under Article 6 § 1 of the Convention that the administrative courts did not hear any witnesses or order an expert opinion on the question of forgery, the Government argue that the applicant companies did not exhaust domestic remedies and that, in any event, the administrative courts did not have to apply the rules of criminal procedure.

The applicant companies argue that they “expressly invoked before the Council of State the principle of trial by one’s natural judge”. In their view, the administrative courts should have either upheld the findings of the criminal courts or applied the rules of criminal procedure.

The Court notes that there is nothing in the case-file to indicate that the applicant companies had requested the administrative courts to admit the above evidence. It follows that the applicant companies have not exhausted domestic remedies in this connection as they were required to do under Article 35 § 1 of the Convention (see Eur. Court HR, Cardot v. France judgment of 19 March 1991, Series A no. 200).

This part of the application must be, therefore, rejected in accordance with Article 35 § 4 of the Convention.

6.The applicant companies also complain under Article 6 of the Convention of the failure of the authorities to provide them with the evidence they had requested.

The Government argue that the applicant companies did not exhaust domestic remedies in this connection. Not only did they fail to raise this complaint with the Council of State but they also failed to request the administrative courts to order the production of the documents in question. In any event, the Government argue that the evidence in question did not concern the question of whether the applicant companies had committed contraband, which was the subject-matter of their original appeals. They only concerned the size of the fines to be imposed. The relevant ground of appeal was rejected by the Council of State as inadmissible on procedural grounds. Moreover, the Government submit that the authorities tried, as far as possible, to satisfy the applicant companies’ various requests for disclosure. These requests were not related to the administrative proceedings. In 1985 the first applicant had sought certain documents in connection with the criminal proceedings against him, while in 1993 he had contacted the prosecutor in connection with the order preventing him from leaving Greece. Finally, the Government point out that the first applicant, during his criminal trial in October 1987, admitted that he had already contacted the Italian customs authorities.

The applicant companies submit that they raised their complaints in substance before the Council of State. They could not have raised these complaints before the lower courts because they did not possess the necessary evidence at the time. The applicant companies had requested access to the entire case-file, to which they were entitled in accordance with the Court’s Kerojärvi v. Finland judgment of 19 July 1995 (Series A no. 322). They also argue that the documents they were looking for were relevant for all the proceedings they were involved in. If the applicant companies had had access to the VOLETS 2 earlier on they would have realised that the Greek authorities had classified the goods in question wrongly. The VOLETS 2 mention the correct classification of the goods as well as the place where the goods arrived. Moreover, the Italian authorities had not marked anything on these documents, as they would have done if they had come to the conclusion that the law had been breached.

The Court, having examined the additional grounds of appeal in cassation lodged by the applicant companies on 16 February 1993, is satisfied that the companies raised their complaints, at least in substance, before the Council of State. However, the question whether the applicant companies could have raised their complaints earlier remains. The gist of the applicant companies’ argument in this connection is that they did not raise the additional grounds of appeal before the lower courts because at the time they were not aware of the content of certain documents that were released to them only following the public prosecutor’s intervention in July 1993. The Court considers that the relevance of these documents is a matter which must be examined together with the merits of the applicant companies’ complaints.

In the light of the parties' observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

7.Moreover, the applicant companies complain under Article 6 § 1 of the length of the proceedings.

The Government submit that the delays before the first instance administrative court were due to the fire that destroyed the court’s premises and the court’s case-load. The delays before the Council of State were caused by the fact that there had been an appeal before the Special Supreme Court in a similar case.

The applicant companies argue that the State is responsible for delays caused by the case-load of the first instance administrative court and the restructuring of the Council of State. It is also liable for the delays before the Special Supreme Court. The applicant companies also point out that, when the fire broke out in the building of the first instance administrative court, their appeals had already been pending for three years. Finally, they argue that the period between the delivery and the “finalisation” of the text of the judgments of the Council of State should be also taken into account.

In the light of the parties' observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

8.Finally, the applicants complain under Article 1 of Protocol No. 1 that, despite the above-mentioned violations, they had to pay the fines and customs duties plus interest.

Article 1 of Protocol No. 1 provides 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.”

The Government point out that the fines and customs duties were paid by the first applicant company.

The Court notes that the fines and customs duties were paid by the first applicant company. It follows that the first applicant and the second applicant company cannot claim to be victims of the alleged violation within the meaning of Article 34 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

9.Insofar as the complaint under Article 1 of Protocol No. 1 is raised by the first applicant company, the Government point out that the fine had to be paid as a result of a final domestic court decision, which did not violate any of the applicant company’s other rights under the Convention. The applicant company could have asked the authorities to waive the default penalties. In any event, the company knew that its appeal in cassation did not suspend its obligation to pay the customs duties and fines. The sum due increased as a result of its own negligence.

The applicant company submits that the law allows the authorities to waive default penalties only when they are themselves responsible for the delay. As regards the substance of the complaint, the applicant company argues that Article 1 of Protocol No. 1 is breached by the very rules that fix the amount of fines to be paid, the default penalties and the interest. In any event, the applicant company was not guilty of contraband.

The Court notes that under domestic law the customs duties and fines had to be paid upon delivery of the judgment of the administrative court of appeal. However, the first applicant company decided to wait for the outcome of the proceedings before the Council of State before paying. It is not alleged that the applicant company would have been unable to recover the customs duties and fines if she had won its appeal before the Council of State. Moreover, the Court notes that the first applicant company did not plead before the Council of State that the manner of calculating the customs duties, fines, default penalties and interest violated Article 1 of Protocol No. 1 or equivalent provisions in the Constitution in the proceedings. It follows that the applicant company has not complied with Article 35 § 1 of the Convention in this connection.

This part of the application must be, therefore, rejected in accordance with Article 35 § 4 of the Convention.

10.However, the Court notes that the first applicant company also complains that there was a violation of Article 1 of Protocol No. 1 as a result of the mere fact that it had been ordered to pay customs duties and fines in proceedings that did not respect its right to have adequate facilities for the preparation of its defence. The Court has already declared the related complaint admissible under Article 6 § 1 and § 3 (b) of the Convention. It follows that the complaint under Article 1 of Protocol No. 1 must be also declared admissible.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant companies’ complaints under Article 6 § 1 and § 3 (b) of the Convention that the authorities failed to provide them with certain evidence and that the proceedings before the administrative courts were not concluded within a reasonable time as well as the first applicant company’s complaint under Article 1 of Protocol No. 1 that, notwithstanding the failure of the authorities to provide it with certain evidence, it was ordered to pay customs duties and fines;

DECLARES INADMISSIBLE the remainder of the application.

Erik FriberghMarc Fischbach
RegistrarPresident

Appendix

Detailed Account of the Proceedings before the Administrative Courts

I.Act No. 3/83/15.6.84 of the Piraeus customs authorities imposed the following fines: on the first applicant as representative of LIBERPA LTD 10,120,000 drachmas, on the first applicant as representative of Y. HARALAMBIDIS - LIBERPA S.A. 10,120,000 drachmas, on Mr Tz 1,012,000 drachmas and on Mr K 1,012,000 drachmas. The payment of 5,208,993 drachmas was also ordered by way of customs duties. The act concerned TIR 413929.

The act was quashed by decision No. 1535/88 of the first instance administrative court of Piraeus.

Decision No. 1835/91 of the administrative court of appeal reversed the first instance decision but reduced the applicants' fine to 14,376,820 drachmas and the global fine to 15,814,502 drachmas.

Council of State decision No. 3916/95 upheld the decision of the court of appeal.

II.Act No. 1/22.6.84 of the Piraeus customs authorities imposed the following fines: on the first applicant as representative of LIBERPA LTD 2,205,311 drachmas, on the first applicant as representative of Y. HARALAMBIDIS - LIBERPA S.A. 2,205,311 drachmas and on Mr K 1,102,681 drachmas. The payment of 1,816,010 drachmas was also ordered by way of customs duties. The act concerned TIR 8630463.

The act was quashed by decision No. 76/89 of the first instance administrative court of Piraeus.

Decision No. 1837/91 of the administrative court of appeal reversed the first instance decision but reduced the applicants' fine to 2,940,483 drachmas and the global fine to 3,675,604 drachmas.

Council of State decision No. 3918/95 upheld the decision of the court of appeal.

III.Act No. 2/22.6.84 imposed the following fines: on the first applicant as representative of LIBERPA LTD 3,769,328 drachmas, on the first applicant as representative of Y. HARALAMBIDIS - LIBERPA S.A. 3,769,328 drachmas and on Mr K 1,884,659 drachmas. The payment of 3,103,860 drachmas was also ordered by way of customs duties. The act concerned TIR 438216.

Decision No. 1534/88 of the first instance administrative court quashed the decision.

Decision No. 1834/91 of the administrative court of appeal reversed the first instance decision but reduced the applicants' fine to 5,025,769 drachmas and the global fine to 6,282,212 drachmas.

Council of State decision No. 3920/95 upheld the decision of the court of appeal.

IV.Act No. 3/22.6.84 imposed the following fines: on the first applicant as representative of LIBERPA LTD 4,163,064 drachmas, on the first applicant as representative of Y. HARALAMBIDIS - LIBERPA S.A. 4,163,064 drachmas and on Mr K 2,081,531. The payment of 3,428,083 drachmas was also ordered by way of customs duties. The act concerned TIR 438803.

Decision No. 1360/89 of the first instance administrative court quashed the act.

Decision No. 1838/91 of the administrative court of appeal reversed the first instance decision but reduced the applicants' fine to 5,550,752 drachmas and the global fine to 6,938,440 drachmas.

Council of State decision No. 3919/95 upheld the decision of the court of appeal.

V.Act No. 4/22.6.84 imposed the following fines: on the first applicant as representative of LIBERPA LTD 6,742,499 drachmas, on the first applicant as representative of Y. HARALAMBIDIS - LIBERPA S.A. 6,742,499 drachmas and on Mr K 3,371,249. The payment of 5,552,124 drachmas was also ordered by way of customs duties. The act concerned TIR 441574.

Decision No. 1361/89 of the first instance administrative court quashed the act.

Decision No. 1833/91 of the administrative court of appeal reversed the first instance decision but reduced the applicants' fine to 8,989,499 drachmas and the global fine to 11,237,499 drachmas.

Council of State decision No. 3915/95 upheld the decision of the court of appeal.

VI.Act No. 5/22.6.84 imposed the following fines: on the first applicant as representative of LIBERPA LTD 2,549,500 drachmas, on the first applicant as representative of Y. HARALAMBIDIS - LIBERPA S.A. 2,549,500 drachmas and on Mr K 1,274,747 drachmas. The payment of 2,099,386 drachmas was also ordered by way of customs duties. The act concerned TIR 441575.

Decision No. 77/89 of the first instance administrative court quashed the act.

Decision No. 1836/91 of the administrative court of appeal reversed the first instance decision but reduced the applicants' fine to 3,399,325 drachmas and the global fine to 4,249,157 drachmas.

Council of State decision No. 3917/95 upheld the decision of the court of appeal.

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