Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22819/93

by Metody BOJLEKOV

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 9 April 1997, the following members being present:

Mrs. G.H. THUNE, President

MM. J.-C. GEUS

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 31 May 1993 by

Metody BOJLEKOV against Poland and registered on 25 October 1993 under

file No. 22819/93;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

5 January 1996 and the observations in reply submitted by the

applicant on 22 March 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Bulgarian citizen born in 1936, is a businessman

residing in Burgas in Bulgaria.

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

summarised as follows:

Particular circumstances of the case

In January 1993 he came to Poland to sell a load of fruit to a

Polish buyer in accordance with a contract which they had previously

concluded. He received the payment of $ 3700 in cash and a statement

that this sum had been paid upon receipt of the merchandise.

Subsequently the applicant inquired in a bank whether he could transfer

the money to Bulgaria by a bank transfer. He was informed that such

transfer would take approximately a month. On 26 January 1993 the

applicant drew a sum of $ 3320 in cash from his account in another

bank, whereupon he received a bank statement, equivalent to an

authorisation to export, that this sum had been taken from his account.

The applicant was leaving Poland at Warsaw airport on

1 February 1993, taking both sums with him. After he had crossed a

"nothing to declare" line, the customs officer asked him whether he

carried any foreign currency. It is undisputed between the parties

that thereupon the applicant produced US $ 3320 and the relevant bank

authorisation. The applicant submits that he also produced the $ 3700

accompanied by the contract and the receipt for the delivered

merchandise. However, the Government assert that this sum and the

accompanying documents were retrieved only after a body search.

The applicant explained that he had believed that those documents

were sufficient to authorise a legal export of the money. The customs

officer informed him that the export of US $ 3700 was irregular as the

applicant did not have a necessary bank authorisation required by

applicable foreign currency regulations. A sum of US $ 4300 was

seised, including the actual exported amount and US $ 600 as a

guarantee covering a possible fine. The applicant signed a statement

to this effect.

On 26 April 1993 the Warsaw Ok*cie Customs Office, without

hearing the applicant, decided on the basis of the case-file that the

applicant was guilty of a breach of the Fiscal Criminal Offences Act

in that he had attempted to export foreign currency without a bank

authorisation required by law, and sentenced him to a fine of PZL

10.000.000 (approximately US $ 600) and the confiscation of the sum of

US $ 3700. The Customs Office considered that the applicant could have

known that the authorisation was necessary, as he had possessed another

authorisation relating to the other sum. Thus, he had to be considered

as deliberately attempting to infringe the foreign currency export

prohibition. The decision notified the applicant of the possibilities

of filing an appeal, namely by lodging an appeal to the Main Customs

Office or by demanding that the case be considered by a court.

The applicant's wife, a Polish citizen residing in Poland,

appealed against this decision to the Main Customs Office. On 31 May

1993 the Warsaw Ok*cie Customs Office refused to transmit this appeal

to the Main Customs Office and rejected it as having been filed by a

person not being a party to the proceedings. Subsequently the

applicant himself appealed to the Main Customs Office against this

decision, and against the decision on the merits of 26 April 1993.

On 24 June 1993 the Main Customs Office confirmed the decision

of 31 May 1993 as the appeal concerned had been made by a third party

to the proceedings. The Office also upheld the original decision as

the applicant's argument that he had not acted deliberately was not

credible. An appeal against this decision was not possible.

Relevant domestic law

a. The relevant substantive provision of the Criminal Fiscal

Offences Act reads as follows:

:

Article 48:

"1. If a person takes foreign currency abroad without a required

authorisation or counter to its terms, he is liable to a fine of

up to 500 000 000 zlotys. (...)"

b. The provisions concerning appeal procedure provide:

:

Article 208:

"1. A penal decision can be appealed.

2. In cases concerning fiscal offences, a party to the

proceedings is entitled either to file an appeal against a penal

decision [to a higher administrative authority] or to demand that

the case be dealt with by a court. An option to use one remedy

bars the use of the other one.(...)"

Article 269:

"Parties to the court proceedings can file an appeal against

court judgments of the first instance in accordance with general

rules [to a higher court]."

COMPLAINTS

The applicant complains under Article 6 of the Convention that

the proceedings before the administrative authorities did not comply

with the requirements of a fair and public hearing. He maintains that

he could not file an appeal to the court as he could not afford to pay

a lawyer. He complains that he was obliged to sign an acknowledgment

of the seizure of the money in Polish which he did not understand.

He submits that due to his limited knowledge of the Polish language he

could not understand the charges against him. The applicant further

complains about the outcome of the proceedings.

The applicant further complains under Article 3 of the Convention

that he was humiliated by a customs official who treated him as a

criminal in spite of the fact that the origin of the money was

perfectly legal. He complains that the confiscation and fine ruined

his business prospects and his livelihood, and were disproportionate

to his offence.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 31 May 1993 and registered on

25 October 1993.

On 6 April 1995 the Commission decided to communicate the

application to the respondent Government pursuant to Rule 48 para. 2(b)

of its Rules of Procedure.

The time-limit for the Government's written observations was

23 June 1995. At the end of June 1995 the Government requested an

extension of this time-limit, which was refused in view of the fact

that it had been requested out of time. The Government submitted

written observations on 5 January 1996. The applicant replied on

22 March 1996, after an extension of the time-limit.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention that he was humiliated by a customs official who treated him

as a criminal in spite of the fact that the origin of the money was

perfectly legal. He complains that the confiscation and fine ruined

his business prospects and his livelihood, and were disproportionate

to his offence.

The respondent Government make a preliminary objection that the

application as a whole is out of the Commission's competence ratione

temporis. Thus, although the Convention has entered into force in

respect of Poland on 19 January 1993, in its declaration under Article

25 (Art. 25) of the Convention Poland has recognised the Commission's

competence only in respect of acts, decisions or events which have

occurred after 30 April 1993. In the applicant's case the decision of

the Warsaw Ok*cie Customs Office imposing fine and confiscation was of

26 April 1993.

The applicant has not commented on this point.

The Commission notes that the applicant's complaint under

Article 3 (Art. 3) of the Convention concerns alleged ill-treatment

which occurred on 1 February 1993. However, Poland has accepted the

Commission's competence under Article 25 (Art. 25) of the Convention

to deal with individual complaints only in respect of alleged

violations of the Convention by virtue of acts, decisions or events

which have occurred after 30 April 1993. Therefore, the Commission is

not competent ratione temporis to examine the complaint under Article

3 (Art. 3) (cf. No. 24086/94, Dec. 2.12.96, unpublished).

It follows that this part of the application has to be rejected

under Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains under Article 6 (Art. 6) of the

Convention that the proceedings before the administrative authorities

did not comply with the requirements of a fair and public hearing. He

maintains that he could not file an appeal to the court as he could not

afford to pay a lawyer. Also, he was obliged to sign an acknowledgment

of the seizure of the money in Polish which he did not understand. His

knowledge of Polish being very limited, he could not understand the

charges against him. The applicant further complains about the outcome

of the proceedings.

Article 6 (Art. 6) of the Convention, insofar as relevant, reads:

"1. In the determination of ... any criminal charge against him,

everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal ...

...

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against

him;

...

c. to defend himself in person or through legal assistance of his

own choosing or, if he has not sufficient means to pay for legal

assistance, to be given if free when the interests of justice so

require;

...

e. to have the free assistance of an interpreter if he cannot

understand or speak the language used in court;

..."

The Government submit that this complaint is also out of the

Commission's competence ratione temporis.

They further contend that the applicant had the opportunity to

have his case heard by a court in compliance with the guarantees of

Article 6 (Art. 6) of the Convention but that he, voluntarily and in

full awareness, preferred the alternative administrative procedure and

thus failed to make use of his right.

The Government also maintain that in compliance with Article 6

paras. 3(a) and 3(e) (Art. 6-3-a, 6-3-e) the customs officers at the

airport informed the applicant promptly and fully about the accusation

against him. This was done without an interpreter because the officers

noted the applicant's sufficient command of Polish. Thus, he is

married to a Polish citizen.

The applicant replies that his knowledge of Polish is very

limited. Thus, he does not live in Poland and does not use the Polish

language in his family. He further states that on 1 February 1993, due

to his poor command of Polish, he was under the wrong impression that

he was only required to sign a document and that he would receive back

his money if he secured later a bank export authorisation. However,

it turned out that it was not possible to obtain an authorisation for

a past period of time. Moreover, it is unacceptable that he was not

informed of his rights under the Convention to a free interpreter and

a lawyer.

The applicant further states that he chose the administrative

proceedings because he did not have money for a lawyer. He did not

know at the time that under the Convention he was entitled to free

legal aid.

The Commission recalls its case-law according to which "when the

Commission's competence (ratione temporis) begins in the course of

proceedings before a second instance, it may examine such proceedings,

but not those at first instance" (No. 24571-24572/94, Dec. 28.6.95,

D.R. 82-A, pp. 85, 94).

Insofar as the applicant raises complaints under Article 6

para. 3 (Art. 6-3) of the Convention in respect of the acts of the

customs officers at the Warsaw airport on 1 February 1993, the

Commission finds that, assuming the existence of a "criminal charge"

and, accordingly, the applicability of Article 6 para. 3

(Art. 6-3) of the Convention, this initial part of the proceedings was

concluded by the decision of the Warsaw Ok*cie Customs Office of 26

April 1993 and, therefore, falls outside the Commission's competence

ratione temporis.

As regards the applicant's remaining complaints the Commission

recalls that under Article 19 (Art. 19) of the Convention its only task

is to ensure the observance of the obligations undertaken by the

Parties to the Convention. In particular, it is not competent to deal

with an application alleging that errors of law or fact have been

committed by domestic courts, except where it considers that such

errors might have involved a possible violation of any of the rights

and freedoms set out in the Convention. The Commission refers on this

point to its established case-law (see e.g. No. 21283/93, Dec. 5.4.94,

D.R. 77-A, pp. 81, 88).

The Commission further recalls that conferring the prosecution

and punishment of minor offences on administrative authorities is not

inconsistent with the Convention, provided that the person concerned

is enabled to take any decision thus made against him before a tribunal

that offers the guarantees of Article 6 (Art. 6) (Eur. Court HR, Öztürk

v. Germany judgment of 27 May 1983, Series A no. 73, p. 21-22, para.

57).

In the present case the proceedings were first conducted before

an administrative authority, i.e. the Warsaw Ok*cie Customs Office,

which on 26 April 1993 decided the case and imposed a penalty on the

basis of the file, without a public hearing. However, this decision

informed the applicant that he could challenge it either by lodging an

appeal to the Main Customs Office or by demanding that the case be

considered by a court. The applicant chose to file his appeal to the

Main Customs Office. He thereby waived his right to have his case

heard by a court with full jurisdiction.

The Commission recalls that such a waiver does not in principle

offend against the Convention; however, absence of constraint is at all

events one of the conditions to be satisfied (Eur. Court HR, Deweer v.

Belgium judgment of 27 February 1980, Series A no. 35, p. 25,

para. 61).

It is true that the applicant maintains that he filed an appeal

to the Main Customs Office as he could not afford to pay a lawyer to

represent him in judicial proceedings. However, it was neither

mandatory for him to be represented by a lawyer, nor can it be assumed

that, had he instituted such proceedings and requested legal aid, it

would have been refused. On the whole there is no indication that the

applicant waived his right to have his case heard by a court under

constraint.

It follows that the applicant's complaints under Article 6

(Art. 6) must be rejected as being partly incompatible ratione temporis

with the provisions of the Convention and partly manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER G.H. THUNE

Secretary President

to the Second Chamber of the Second Chamber

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BOJLEKOV v. POLAND

BOJLEKOV v. POLAND

LEXI