FIFTH SECTION
DECISION
Application no. 17544/07
JAKOB’S CENTER D.O.O.
against Slovenia
The European Court of Human Rights (Fifth Section), sitting on 16 September 2014 as a Chamber composed of:
Mark Villiger, President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Vincent A. De Gaetano,
André Potocki,
Helena Jäderblom, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 10 April 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, JAKOB’S CENTER d.o.o., is a private company with a registered office in Zgornji Brnik. It was represented before the Court by Mr I. Trebec, a lawyer practising in Sežana.
2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs T. Mihelič Žitko, State Attorney.
The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background to the case
4. At the time of the events at issue, the applicant company was acting as a forwarding agent and customs broker for import-export transit operations. In that capacity, it was liable for the payment of customs debts if they were incurred. In 1997, the company carried out a transit procedure for the importation of goods supposedly destined for Bosnia and Herzegovina; however, in reality the goods never reached their destination, but were placed on the Slovenian market. The operation formed part of a wider fraud involving at least one customs official, P.K., and a number of other persons. Once the fraud had been detected, the customs debt incurred as a result of the fact that the goods had not left the national territory was imposed on the applicant company as the principal actor in the transit procedure.
5. On 7 April 1998, the applicant company paid 2,265,033.00 Slovenian tolars (SIT) (approximately 9,452 euros (EUR)) and on 17 November 1998 it paid SIT 1,810,855.00 (approximately EUR 7,557). Although it was not disputed by the authorities that the applicant company was the victim of fraudulent activities by third parties, it could not relieve itself of that liability.
6. The applicant company challenged its liability for the payment of the debt. The Customs Administration of the Republic of Slovenia dismissed its challenge, finding that although it was not the applicant company’s fault that the goods in question had been unlawfully removed from customs supervision, as the principal actor it was nevertheless liable for the payment of the customs debt. Moreover, the Customs Administration noted that any unlawful activity on the part of customs officials bore no relation to the applicant company’s duty to pay the debt. The Administrative Court subsequently dismissed an administrative action lodged by the applicant company. The Supreme Court dismissed an appeal lodged by the applicant company, upholding the position of the lower instances that, by acting as the principal company in the transit procedure, the applicant company had assumed the risk of having to pay customs debt. The Constitutional Court refused to accept the applicant company’s constitutional complaint for consideration.
2. Commercial proceedings
7. In their submissions the Government noted that in November 2001 the applicant company had instituted commercial proceedings before the Koper District Court against the Republic of Slovenia and P.K. seeking compensation for the customs payment (SIT 4,075,888.00, approximately EUR 17,008), together with statutory default interest and costs of the proceedings.
8. The Government further explained that on 9 May 2006 the Koper District Court had found in favour of the applicant company.
9. The Republic of Slovenia and P.K. lodged an appeal. Thus, when the application was lodged before the Court on 10 April 2007, the proceedings were pending before the Koper Higher Court.
10. On 21 June 2007 the Koper Higher Court upheld the judgment of 9 May 2006, which then became final.
11. On 5 September 2007 the Republic of Slovenia lodged a motion for the protection of legality against the judgment of 21 June 2007 with the Office of the State Prosecutor General of the Republic of Slovenia, which did not accept to file a request for the protection of legality.
12. On 7 September 2007 the Republic of Slovenia enforced the judgment of 9 May 2006 and paid the applicant company EUR 36,908.40 (SIT 8,844,728.97).
13. In its application to the Court the applicant company did not mention the commercial proceedings or the judgment of 9 May 2006, which had been enforced. In its later submissions, it expressed its wish to maintain the application.
COMPLAINTS
14. The applicant company complained, under Article 6 of the Convention, that it incurred a customs debt without any examination of its liability for the acts of third persons, notably those of a customs official whose criminal offences resulted in the imposition of the customs debt.
15. The applicant company also complained, under the same Article, that as the criminal offences with which the customs official had been charged were declared time-barred, it was unable to (a) obtain proof of the forgery of customs documents and of the release of the goods in question into the national territory; (b) show that the unlawful acts resulting in the imposition of the customs debt had been committed by the said official; and (c) enforce its rights as the civil party in the proceedings.
16. Lastly, the applicant company, invoking Article 1 of Protocol No. 1, complained that it was forced by the State, in breach of the domestic law, to pay the customs debt for goods smuggled and sold by a customs official, regardless of the fact that the State could have claimed the customs debt from the said official.
THE LAW
17. The Government first argued that as the award of compensation, interest and costs had restored the applicant company to its condition prior to the payment of the customs debt, the applicant company had lost its victim status. Secondly, they argued that although at the time of lodging the application, the applicant company knew that it had been fully awarded compensation for the customs payment, it had not informed the Court of that fact. Nor had it informed the Court about the commercial proceedings or that the judgment had subsequently been fully enforced. According to the Government, that constituted an abuse of the right of application.
18. Regardless of those arguments, the applicant company expressed its wish to maintain the application in full and persisted in arguing that as it had been proved that customs officers had committed a criminal act by removing the goods from customs supervision, they were liable to pay the customs debt.
19. The Court reiterates that an application may be rejected as abusive under Article 35 § 3 (a) of the Convention, among other reasons, if it was knowingly based on untrue facts (see, among others, Akdivar v. Turkey, 16 September 1996, §§ 53-54, Reports of Judgments and Decisions 1996‑IV; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; Popov v. Moldova (no. 1), no. 74153/01, § 48, 18 January 2005; Rehak v. Czech Republic (dec.), no. 67208/01, 18 May 2004; Kérétchachvili v. Georgia (dec.), no. 5667/02, 2 May 2006). Incomplete and therefore misleading information may also amount to abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Hüttner v. Germany (dec.), no. 23130/04, 9 June 2006; Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007; and Predescu v. Romania, no. 21447/03, §§ 25-26, 2 December 2008). It is the applicant’s duty to present at least those essential facts which are at his disposal and which he must be aware are of significant bearing for the Court to be able to properly assess the case (see Kowal v. Poland (dec.), no. 2912/11, § 32, 18 September 2012).
20. Turning to the circumstances of the present case, the applicant company’s complaint concerned the liability imposed on it for the payment of a customs debt. The Court notes that at the time of lodging the application, on 10 April 2007, the applicant company already had at its disposal the judgment of 9 May 2006, which although not final, awarded it the amount of the customs debt it had paid, statutory default interest and the costs of the commercial proceedings.
21. However, the applicant company did not inform the Court about the commercial proceedings or the judgment of 9 May 2006. Nor did it inform the Court subsequently about the full enforcement of the judgment or furnish any plausible explanation for omitting to inform the Court about those facts. Moreover, in its observations, received by the Court on 27 November 2013, it informed the Court that it wished to maintain the application.
22. In that light, the Court considers that the applicant company’s conduct in the present case was misleading and contrary to the purpose of the right of individual petition as provided for in Article 34 of the Convention. The application must therefore be rejected as an abuse thereof, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia WesterdiekMark Villiger
RegistrarPresident
Full & Egal Universal Law Academy