Communicated on 3 March 2014
FIFTH SECTION
Application no. 29389/09
Ivan Aleksandrovich MYAKOTIN
against Ukraine
lodged on 14 May 2009
STATEMENT OF FACTS
The applicant, Mr Ivan Aleksandrovich Myakotin, is a Ukrainian national, who was born in 1987 and lives in the town of Berdyansk, Ukraine.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 30 April 2008 the applicant, a citizen of Ukraine, crossed the Ukrainian border. He was driving a car, bought in Spain. The applicant stated that he permanently lived in Spain and had come to Ukraine to continue his studies. In support of his statement the applicant submitted a Spanish residence permit issued on 22 June 2007 and valid till 18 June 2009. The applicant was allowed to temporarily bring the car on the customs territory of Ukraine until 30 June 2008.
On 5 June 2008 the applicant was stopped by the traffic police. Following a check-up, on 27 June 2008 an administrative offence report was drawn up. It was concluded that the applicant had breached the customs rules since he should have been considered as a resident of Ukraine and thus should pay 56,394.40 Ukrainian hryvnias (UAH) (at the material time around 5,000 euros (EUR)) in customs fees for his car. On 4 July 2008 the Berdyansk Customs Office seized the applicant’s car. The administrative offence case against the applicant instituted for a breach of customs rules was transferred to a court. The applicant was accused of movement of a vehicle through customs border of Ukraine outside customs control and of evasion of customs duties.
On 7 July 2008 the applicant’s car was evaluated as being worth UAH 76,088 (at the material time around 6.739,34 euros (EUR)).
On 7 July and 21 August 2008 the Berdyansk Tax Police decided not to institute criminal proceedings against the applicant for tax evasion and trafficking as the amount of alleged damages was less than the minimum amount required for the acts in question to constitute an offence under the Criminal Code of Ukraine.
On 5 September 2008 the customs officer, T., was disciplined for not correctly applying the customs regulations in the applicant’s case. It was noted in the relevant decision that since in the customs declaration it had been indicated that the applicant permanently resided in Spain, T. had decided that the applicant could temporarily bring his car on the territory of Ukraine. However, such decision was unlawful since there were no indication that the applicant had been registered permanently or temporarily in a Ukrainian consulate abroad.
On 15 September 2008 the Berdyanskyy Local Court referred the administrative offence case against the applicant to the Berdyansk Customs Office for additional verification. The court noted that the customs officer T. had to be questioned and the circumstances of filling in the customs declaration by the applicant should be verified.
On 10 November 2008 the Berdyanskyy Local Court, referring to Article 38 of the Code on Administrative Offences and Articles 322 and 328 of the Customs Code, terminated the proceedings in the applicant’s case as time-barred, however, it ordered the confiscation of the applicant’s car. In a court hearing the applicant explained that he had been working in Spain. When entering Ukraine he had presented all relevant documents to a customs officer and was not evading customs control. The court, however, referring to Personal Belongings, Goods and Vehicles Owned by Individuals Customs Act (see below), found that the applicant, being a resident of Ukraine, had entered untrue information into the customs declaration.
The applicant appealed stating that his guilt had not been proved. There was no evidence that he had an intention to breach customs rules. The applicant submitted all necessary documents to a customs officer who filled in the customs declaration. In particular, during the internal investigation, the customs officer, T., admitted that he had taken the relevant decision on the basis of the documents submitted by the applicant. The applicant also noted that he had no permanent place of residence in Ukraine since his parents lived in Spain and he had been coming to Ukraine twice a year to pass exams in the university. The applicant finally noted that the court had failed to provide any reasoning in support of its decision not to fine the applicant but to confiscate his car. According to the applicant, such sanction was too severe in respect of his offence if any.
On 17 November 2008 the Azov Regional Management Institute confirmed that the applicant had been studying there since 2004.
On 22 December 2008 the Zaporizhzhya Regional Court of Appeal amended the decision of 10 November 2008 and found the applicant guilty of breaching the customs rules. The court noted that since the sanction of confiscation could be applied at any time, the proceedings against the applicant for a breach of Article 351 of the Customs Code could not be terminated as time-barred. The court further noted that the applicant lived in Spain temporarily and had been registered as living permanently in Berdyansk.
B. Relevant domestic law
1. Customs Code, 2002 (in force at the material time)
Articles 322 and 328 of the Code provided for confiscation as one of the administrative penalties for a breach of customs regulations. There was no time-limit for imposition of a confiscation.
Other relevant provisions of the Code provided as following:
Article 351. Actions, Aimed at Movement of Goods and Vehicles through the Customs Border of Ukraine out of the Customs Control
Actions, aimed at movement of goods and vehicles through the customs border of Ukraine out of the customs control, i.e. movement thereof through the customs border of Ukraine in places other than the location of a customs authorities or in the time other than the time for the customs clearance, or using unlawful exemption of goods from the customs clearance in the result of abuse of power by customs officials, -
shall be the reason for imposing penalty in the amount from 500 to 1,000 minimum tax-free personal incomes, or confiscation of such goods, as well as confiscation of vehicles used for transportation through the customs territory of Ukraine of goods – direct objects of violations of customs rules.
Article 355. Activities, Aimed at Illegal Exemption from Taxes and Fees or at Reduction of their Amounts
Declaring false data in customs declaration and submission of documents with such information to the customs authority as grounds for an exemption from taxes and fees or reduction of their amounts, or failure to pay taxes and fees within the time-periods, established by legislation, as well as other illegal actions, that resulted in taxes and fees arrears, where such actions do not constitute a criminal offence, -
shall be the reason for imposing a fine in the amount of one hundred up to five hundred minimum tax-free personal incomes on natural persons and from five hundred up to one thousand minimum tax-free personal incomes on enterprise officials.
2. Code on Administrative Offenses, 1984
According to Article 38 of the Code, in force before 17 November 2008, the time-limit for imposition of a penalty under the administrative law is two months from the date of commitment of an administrative offence and two months from the date of detection of a continuous administrative offence. In case of refusal to institute criminal proceedings or of cessation of the criminal case, but in the presence of signs of an administrative offence in actions of the offender, administrative penalty may be imposed no later than within a period of one month from the date of adoption of the decision to refuse the institution of criminal case or to drop the case.
As of 17 November 2008 the two-month time-limits for imposition of a penalty in the cases examined by the court were replaced by three-month time-limits.
3. Law of Ukraine “On procedure of the import (dispatch) into Ukraine, the customs clearance and taxation of personal belongings, goods and vehicles imported (dispatched) by individuals into the customs territory of Ukraine” (Закон України “Про порядок ввезення (пересилання) в Україну, митного оформлення й оподаткування особистих речей, товарів та транспортних засобів, що ввозяться (пересилаються) громадянами на митну територію України"), 2002, (in force at the material time) (Personal Belongings, Goods and Vehicles Owned by Individuals Customs Act) (in force at the material time)
According to Section 1 of this Act, citizens are considered as residents if they have a permanent place of residence in Ukraine even when they temporarily live abroad. A citizen is considered as having a permanent place of residence abroad if he/she lives there for at least one year. The residence in a country for the purpose of performing work or other duties under a contract is not considered to be the permanent residence.
According to Section 11 of the Act, Ukrainian residents can temporarily import a car for up to one year upon payment of customs duties.
4. Other legal acts
According to a letter of the Ministry of Foreign Affairs of Ukraine of 18 November 2005 the proof of permanent residence outside Ukraine is a passport for travelling abroad with a stamp “permanent residence”.
According to a letter of the Customs Service of Ukraine of 22 August 2002, Ukrainian citizens temporarily living abroad are to be considered as residents of Ukraine.
COMPLAINTS
The applicant complains that he did not breach any legal provisions since it was the customs officer who had allowed him to bring the car temporarily on the territory of Ukraine. He also complains that the administrative offence proceedings against him should have been terminated as time‑barred. The applicant cites Articles 6, 13 and 14 of the Convention and Article 1 of Protocol No. 1.
QUESTIONS TO THE PARTIES
Has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? In particular, what particular provisions of the Code on Administrative Offences and of the Customs Code were applied in the applicant’s case?
What were the legal provisions on temporary and permanent residency applicable at the material time? Were they accessible and foreseeable?
If the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V?
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