Communicated on 26 April 2017
FIRST SECTION
Application no. 7834/12
Željko LOPAC against Croatia
and 3 other applications
(see list appended)
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 7834/12
On 8 May 2001 the Austrian authorities granted the applicant permanent residence.
Every year since 1998, when entering Croatia the applicant has declared temporary importation of a vessel in his ownership to the Croatian customs authorities with a view to being exempted from paying the relevant taxes. He did so also on 17 July 2003.
However, on 29 March 2005 the Customs Administration instituted administrative offence proceedings (prekršajni postupak) against him for having imported his vessel into Croatia without paying the relevant taxes.
Concurrently, the Customs Administration instituted tax-related administrative proceedings and in a decision of 13 June 2005 ordered the applicant to pay the import taxes due on his vessel in the amount of 166,886.70 Croatian kunas (HRK)[1] plus the statutory default interest. They found that the applicant had not satisfied the conditions for exemption from payment of customs duties provided for in Article 5 of Annex C to the Convention on Temporary Admission (“the Istanbul Convention”).
On 7 November 2005 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision of 13 June 2005.
On 15 December 2006 the applicant paid the customs duties in the total amount of HRK 198,439.45[2]. At the same time, he brought an action for judicial review, which the Administrative Court dismissed in a judgment of 31 July 2008. The Administrative Court upheld the administrative bodies’ decisions, finding that the applicant’s registered domicile had been in Croatia, that he had been registered as a tax payer in Croatia, and that it was irrelevant that he had been granted the right to reside permanently in Austria.
Meanwhile, on 29 May 2007 the Customs Administration suspended the aforementioned administrative offence proceedings because they found that the applicant had satisfied the conditions for exemption provided for in Article 5 of Annex C to the Istanbul Convention.
On 25 October 2008 the applicant lodged a constitutional complaint against the Administrative Court’s judgment of 31 July 2008, claiming violations of his constitutional rights to equality before the law, appeal, judicial review, fair hearing and freedom of movement. He also relied on his Convention rights to a fair hearing and an effective remedy, and the right to liberty of movement and freedom to choose his residence. He complained, in particular, that the administrative authorities and the Administrative Court had wrongly interpreted the term “person resident” in Article 5 of Annex C to the Istanbul Convention on Temporary Admission by equating it with the term “domiciled” as defined in domestic legislation.
By a decision of 6 July 2011 the Constitutional Court declared inadmissible the applicant’s constitutional complaint because the case did not raise any constitutional issue. This decision was served on the applicant’s representative on 18 July 2011.
2. Application no. 34664/12
By a decision of 4 July 2007 the Customs Administration ordered the applicant to pay the relevant taxes, in the amount of HRK 107,577.33[3] plus the statutory default interest, because he had failed to declare the temporary importation of a vehicle when entering Croatia and he did not satisfy the conditions for exemption provided for in Article 5 of Annex C to the Istanbul Convention.
On 9 January 2008 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision.
The applicant then brought an action for judicial review in the Administrative Court, claiming that he had lived and worked in Sweden during the period concerned.
By a judgment of 5 October 2010 the Administrative Court dismissed the applicant’s action, finding that the applicant’s registered domicile had been in Croatia at the time of the commission of the offence and that it was irrelevant that he had been granted the right to reside permanently in Sweden.
On 21 January 2011 the applicant lodged a constitutional complaint against the Administrative Court’s judgment of 5 October 2010, claiming violations of his constitutional rights to a fair hearing, appeal, judicial review and equality before the courts. He claimed in particular that the administrative authorities and the Administrative Court had wrongly interpreted the term “person resident” in Article 5 of Annex C to the Istanbul Convention on Temporary Admission by equating it with the term “domiciled” as defined in domestic legislation.
By a decision of 19 October 2011 the Constitutional Court declared inadmissible a subsequent constitutional complaint by the applicant because the case did not raise any constitutional issue. This decision was served on the applicant’s representative on 14 November 2011.
3. Application no. 43801/13
By a decision of 23 May 2006 the Customs Administration ordered the applicant to pay the relevant taxes, in the amount of HRK 904,334.78[4] plus the statutory default interest, because he did not meet the conditions for exemption provided for in Article 5 of Annex C to the Istanbul Convention.
On 6 July 2006 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision
In its judgment of 9 September 2009 the Administrative Court dismissed the applicant’s application for judicial review, finding that his registered domicile had been in Croatia at the time of the commission of the offence and that it was irrelevant that he had been granted the right to reside permanently in the Czech Republic.
The applicant then lodged a constitutional complaint against the Administrative Court’s judgment of 9 September 2009 claiming, inter alia, that the administrative authorities had violated his constitutional rights to equality before the law, appeal, judicial review, fair hearing, the principle of nullum crimen sine lege, the right to leave Croatia, the right to personal and family life, and the right of ownership. He also relied on his Convention right to peaceful enjoyment of his possessions and the right to liberty of movement and freedom to choose his residence.
By a decision of 21 November 2012 the Constitutional Court dismissed the applicant’s subsequent constitutional complaint. This decision was served on the applicant’s representative on 10 December 2012.
4. Application no. 19327/14
On 15 September 2012 the Customs Administration instituted administrative offence proceedings (prekršajni postupak) against the applicant for having imported his car into Croatia without paying the relevant taxes.
On 19 November 2012 the Customs Administration found the applicant guilty of having committed the relevant administrative offence and fined him HRK 3,000[5]. The Customs Administration found that the applicant’s registered domicile had been in Croatia at the time of the commission of the offence. Therefore, it was irrelevant that he had been granted the right to reside permanently in the Czech Republic.
On 3 April 2013 the High Court for Administrative Offences dismissed an appeal by the applicant and upheld the first-instance decision, endorsing the reasons given therein.
The applicant then lodged a constitutional complaint against the second‑instance decision, alleging violations of his constitutional rights to a fair hearing, freedom of movement and freedom to choose residence. He also alleged that an individual may not be punished for an act which, prior to its commission, was not defined as a punishable offence by domestic or international law, nor may that individual be sentenced to a penalty which was not then defined by law. He argued that the Customs Administration and the High Court for Administrative Offences had misinterpreted the text of Article 5 of Annex C to the Istanbul Convention.
By a decision of 24 October 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible because the case did not raise any constitutional issue. This decision was served on the applicant’s representative on 18 November 2013.
B. Relevant international and domestic law and practice
The relevant international and domestic law and practice is summarised in the case of Žaja v. Croatia, no. 37462/09, §§ 26-36 and 43-61, 4 October 2016.
COMPLAINTS
1. The applicants in applications nos. 7834/12, 34664/12 and 43801/13 complain under Article 1 of Protocol No. 1 to the Convention that the Customs Administration wrongly interpreted Article 5 of Annex C to the Istanbul Convention, thereby violating their right to peaceful enjoyment of their possessions.
2. Relying on Article 7 of the Convention, the applicant in application no. 19327/14 complains that his actions did not amount to an administrative offence and that the domestic authorities wrongly interpreted Article 5 of Annex C to the Istanbul Convention.
QUESTIONS TO THE PARTIES
Applications nos. 7834/12, 34664/12 and 43801/13
Has there been a violation of the applicants’ right to peaceful enjoyment of their possessions, guaranteed by Article 1 of Protocol No. 1 to the Convention? In particular, were the interferences with the applicants’ right to peaceful enjoyment of their possessions foreseeable (see, mutatis mutandis, Žaja v. Croatia, no. 37462/09, §§ 93-105, 4 October 2016)?
Application no. 19327/14
Did the act for which the applicant was fined constitute an offence under national law, as envisaged by Article 7 of the Convention (see Žaja v. Croatia, no. 37462/09, 4 October 2016)?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
nationality
Represented by
7834/12
17/01/2012
Željko LOPAC
24/06/1949
Zagreb
Croatian national
Maro MIHOČEVIĆ, a lawyer practising in Zagreb
34664/12
10/05/2012
Zoran VLADIĆ
26/12/1965
Dubrovnik
Croatian national
Dubravko ARAPOVIĆ, a lawyer practising in Dubrovnik
43801/13
07/06/2013
Zvonimir POŠČIĆ
28/07/1960
Prague
Croatian national
Zoran VUKIĆ, a lawyer practising in Rijeka
19327/14
26/02/2014
Irfan ZJAKIĆ
07/07/1961
Zagreb
Croatian national
Nenad ŠKARE, a lawyer practising in Zagreb
[1] About EUR 22,830 at the material time
[2] About EUR 27,000 at the material time
[3] About EUR 14.700 at the material time
[4] About EUR 12.440 at the material time
[5] About EUR 400 at the material time
Full & Egal Universal Law Academy