Late imposition of an administrative fine for violation of the customs code and seizure of real estate. Violation of the right to respect for property
JUDGMENT
Artashes Antonyan v. Armenia 22.10.2020 (app. no. 24313/10)
SUMMARY
Imposition of an overdue customs fine. Foreclosure and auction of real estate. Right to property.
The applicant was fined under the Customs Code for inaccurate invoicing of imported products. The imposition of a fine took place after the expiry of the two-month period from the finding of the infringement. The domestic courts finally rejected the applicant’s appeal without replying to his limitation claim. Deprivation of his salary and confiscation of his property were imposed.
Strasbourg reiterated its well-established case-law that any interference by a public authority in the peaceful enjoyment of property must be lawful and the law imposing it must be foreseeable.
In the present case, the ECtHR found that the domestic Administrative Courts, while it was vital for the applicant to determine the date of the confirmation of the infringement in order to establish that it had taken place within the period prescribed by law, had not carried out a thorough review. does not have effective protection.
The ECtHR found a violation of his right to respect for his property (Article 1 of the First Additional Protocol) and awarded the applicant EUR 20,800 in damages and EUR 3,000 in respect of non-pecuniary damage.
PROVISION
Article 1 ΠΠΠ
PRINCIPAL FACTS
The applicant, Artashes Antonyan, is an Armenian national who was born in 1954 and lives in Kajaran
(Armenia).
The case concerned the applicant’s complaint about the fine imposed on him for a breach of
customs regulations.
On 30 July 2008, following an inspection of the company for whom the applicant was working, the
customs authorities issued a document stating that he had filed inaccurate declarations as regards
the price of certain imported goods. He was as a result fined in administrative proceedings initiated
against him on 17 October 2008.
He contested the decision in the administrative courts, arguing that it was in breach of Article 37 of
the Code of Administrative Offences (CAO) which provided that a penalty for a breach of customs
regulations had to be imposed within two months of the date on which the offence had been
discovered. As the inspection had been carried out in July 2008, the deadline for imposing the fine
had expired at the end of September 2008.
The Administrative Court dismissed his claim in August 2009, ruling that his offence had been
discovered on 17 October 2008, namely the date when the record of the breach of customs
regulations had been drawn up. The applicant’s appeal on points of law was subsequently declared
inadmissible for lack of merit.
In the enforcement proceedings the applicant’s employer withheld 50% of his salary from June 2011
to April 2012, and several flats he owned were seized and sold by the authorities.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention on
Human Rights, the applicant complained that the imposition of the fine had been unlawful, in
particular because it had been in breach of the two-month prescription period set down in the CAO.
THE DECISION OF THE COURT…
The Court reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The existence of a legal basis in domestic law does not suffice, in itself, to satisfy the principle of lawfulness which, in addition, presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application.
In particular, a norm is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities. Any interference with the peaceful enjoyment of possessions must, therefore, be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by that provision. In ascertaining whether that condition has been satisfied, a comprehensive view must be taken of the applicable judicial and administrative procedures.
The Court has also acknowledged in its case-law that, however clearly drafted a legal provision may be, in any system of law there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adapting to changing circumstances. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The role of adjudication vested in the courts is precisely to dissipate such interpretation doubts as remain.
In the present case, the parties disagreed as to whether the fine for a breach of customs regulations had been imposed on the applicant in compliance with the rule prescribed in Article 37 of the CAO and whether the rule itself had been foreseeable. The Court notes that that Article allowed imposition of a penalty for a breach of customs regulations at the latest within two months of the date on which the offence in question had been discovered. The Government argued that the date on which an offence was considered discovered within the meaning of Article 37 of the CAO was the date on which the record of a breach of customs regulations was drawn up and the administrative proceedings were initiated. That Article had been consistently interpreted and applied by the domestic authorities in such a manner, including in the applicant’s case, hence the interference had been lawful and foreseeable.
The Court does not consider that Article 37 of the CAO was in itself unforeseeable in that it was not sufficiently clearly drafted. As already noted above, it was for the domestic courts to clarify in each particular case the starting point of the prescription period specified in that Article. In the Court’s opinion, however, the domestic court failed to fulfil this obligation thoroughly and diligently, as the circumstances of the applicant’s case required. Having regard to the decision of the Administrative Court of 28 August 2009, the Court notes that the finding reached regarding the date of discovery of the offence does not appear to have been made as a result of proper assessment of that question, whereas such assessment was crucial for determination of lawfulness of the interference with the applicant’s possessions. While finding that the offence in the applicant’s case had been discovered on the date when the relevant official had drawn up the record of a breach of customs regulations, the Administrative Court failed to provide any explanation or reasoning whatsoever for its decision. It entirely ignored the fact that, prior to that date, a customs inspection had been carried out which had revealed the factual elements of the act committed by the applicant, including all the applicant’s submissions in that regard, despite the fact that, as already noted above, the results of a customs check had been previously found by the Court of Cassation to constitute the date of discovery of a customs breach within the meaning of Article 37 of the CAO. The Government argued that the customs inspection in the present case had been different from the one conducted in the case examined by the Court of Cassation. However, it was for the Administrative Court to determine that question, but its decision was entirely silent on that matter.
Αγνόησε πλήρως το γεγονός ότι, πριν από την ημερομηνία αυτή, διενεργήθηκε τελωνειακός έλεγχος που αποκάλυψε τα πραγματικά στοιχεία της πράξης που διέπραξε ο προσφεύγων, συμπεριλαμβανομένων όλων των σχετικών ισχυρισμών του παρά το γεγονός ότι, όπως ήδη αναφέρθηκε ανωτέρω, τα αποτελέσματα ενός τελωνειακού ελέγχου είχαν προηγουμένως διαπιστωθεί από το Ακυρωτικό Δικαστήριο και αποτελούσε την ημερομηνία διαπίστωσης μιας παραβίασης κατά την έννοια του άρθρου 37 του CAO. Η Κυβέρνηση ισχυρίστηκε ότι ο τελωνειακός έλεγχος στην παρούσα υπόθεση ήταν διαφορετικός από αυτόν που διενεργήθηκε στην υπόθεση που εξέτασε το Ακυρωτικό Δικαστήριο. Ωστόσο, εναπόκειτο στο Διοικητικό Δικαστήριο να καθορίσει το ερώτημα αυτό, αλλά η απόφασή του ήταν εντελώς δεν ασχολήθηκε καθόλου με το θέμα.
The Court reiterates that the Convention is designed to guarantee not rights that are theoretical or illusory but rights that are practical and effective. In the Court’s opinion, for the applicant to enjoy effective protection of his rights guaranteed by Article 1 of Protocol No. 1, the circumstances of his case required a more in-depth and thorough scrutiny of the question as to when the prescription period contained in Article 37 of the CAO had started running, especially in view of the manner in which that Article had been previously applied by the Court of Cassation. As already noted above, the Administrative Court carried out only a perfunctory examination and failed to address all the circumstances vital for determination of that question, which stripped the applicant, in the particular circumstances of his case, of the effective protection he should have enjoyed under Article 1 of Protocol No. 1. Nor can it be said that such application of Article 37 of the CAO was sufficiently foreseeable in the particular circumstances of the case.
The foregoing considerations are sufficient for the Court to conclude that the interference with the applicant’s peaceful enjoyment of possessions was not lawful within the meaning of Article 1 of Protocol No. 1.
There has accordingly been a violation of Article 1 of Protocol No. 1 of the Convention.
Just satisfaction: 20,800 euros (EUR) (pecuniary damage), EUR 3,000 (non-pecuniary damage) and
EUR 2,000 (costs and expenses)
