FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31338/04 by Sergiy Vasylyovych BOYARCHENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 25 November 2008 as a Chamber composed of:

Rait Maruste , President, Karel Jungwiert , Volodymyr Butkevych , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 19 August 2004,

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

The applicant, Mr Sergiy Vasylyovych Boyarchenko, is a Ukrainian national who was born in 1957 and lives in Chernigiv. He was represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agents, Mrs V. Lutkovska and Mr Y. Zaytsev.

A. The circumstances of the case

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

On 18 February 2001 the applicant brought a car registered in Lithuania (a 1986 Volvo 740) into the customs territory of Ukraine . When crossing the border he undertook an obligation to re-export the car before 27 February 2001. According to the State authorities he failed to do so.

On 23 June 2003, the Chernigiv Customs Office (“the Customs Office”) drew up a report on an infringement of customs regulations due to the applicant ’ s failure to remove the car from the customs territory of Ukraine (Article 113 of the Customs Code 1991). This case of a violation of customs regulations was referred to the Novozavodsky District Court of Chernigiv (“the Novozavodsky Court ”) for consideration.

On 26 December 2003, having heard the applicant, who stated that he had taken the car to Russia, although he had no confirmation for this, and the Customs Office, which explained that a check of the records did not confirm that the car had crossed the border into Russia, the Novozavodsky Court returned the case to the customs authorities for corrections and additional verification. In particular, the court noted that the information submitted by the Customs authority contained an inaccuracy as to the chassis number of the vehicle (00761 instead of 007612) and therefore the court ordered that the customs records be checked once again with the correct chassis number.

On 23 January 2004 the applicant left Ukraine to take up permanent residence in Russia without informing the court about his new address.

The Novozavodsky Court summoned the applicant for a further hearing in February 2004.

By a letter of 16 February 2004, the applicant ’ s lawyer informed the court that the applicant had registered as having left his apartment in Ukraine and had left for Russia at the end of January. He also stated that the applicant had not been notified about the court hearing as the applicant ’ s actual location was unknown to him.

The court summoned the applicant again for a hearing in March 2004.

On 16 March 2004 the court considered the case in the applicant ’ s absence. The applicant ’ s mother, who appeared before the court, confirmed that his actual place of residence was unknown. The court considered the applicant ’ s failure to appear before it as an intentional evasion from justice and decided that the case could be considered in the applicant ’ s absence. The court then found the applicant guilty of having failed to re-export the car in violation of Section 113 of the Customs Code 1991 and reclassified the offence under Section 348 of the Customs Code 2002. The court ordered the confiscation of the vehicle, but given that the car ’ s location was unknown, it replaced confiscation with payment of 16,779.31 Ukrainian hryvnias (UAH) (about 2,237 euros (EUR)), which corresponded to the value of the car, in accordance with Section 450 of the Customs Code 2002.

On an unknown date the applicant lodged a request for review of the decision of 16 March 2004 with the President of the Chernigiv Court of Appeal.

By a letter of 7 July 2004 the President of the Chernigiv Court of Appeal informed the applicant that he had examined his case file and his request and found no reason for the review. He noted, in particular, that the decision of 16 March 2004 was in accordance with law and that the applicant had been duly summoned twice at the address indicated by him and had provided no justification for his absence.

B. Relevant domestic law

1. Code on Administrative Offences 1984 and Customs Code 1991

Relevant provisions of the Codes are summarised in the case of Nadtochiy v. Ukraine (no. 7460/03, §§ 13-14, 22 April 2008.)

2. Customs Code 2002 (replaced the Customs Code 1991 as of 1 January 2004)

The new Customs Code contains provisions relevant to the case which are similar to those in the old Customs Code.

Section 348 of the Code provides for a fine or confiscation of goods in case of infringement of the obligation on taking the items in or out the customs territory of Ukraine (Section 113 of the Customs Code 1991).

Section 390 of the Code foresees that, as a general rule, court hearings shall be conducted in the presence of the person against whom proceedings on violation of custom regulations have been brought. However, the hearings can be conducted in the absence of such a person when there is information about the timely notification of this person about the place and time of consideration of the case, but he or she has not submitted any request for adjournment of the case.

Section 405 of the Code stipulates that if the confiscation ordered by the court is impossible the pecuniary equivalent of the value of the items to be confiscated shall be collected from the persons who have infringed the customs regulations (Section 149 of the Customs Code 1991).

COMPLAINTS

The applicant complained under Articles 6 § 1 and 13 of the Convention that the decision of the Novozavodsky Court of 15 March 2004 was unfair and arbitrary and had been given in his absence. He further complained that the court was partial because it had asked him to prove his innocence. In addition, he complained that the court had imposed an excessive financial burden on him in a violation of Article 1 of Protocol No. 1. The applicant further claimed, without any particular specification, an infringement of his rights under Articles 7, 8 and 10 of the Universal Declaration of Human Rights.

THE LAW

1. The Government maintained that the proceedings in the applicant ’ s case had not been criminal in nature and therefore the applicant ’ s complaints were incompatible ratione materiae . They advanced the same arguments as in the case of Nadtochiy v. Ukraine (cited above, §§ 17-18). The applicant agreed with the Government but maintained that the proceedings affected his pecuniary interests and Article 6 § 1 of the Convention was therefore applicable to the proceedings in its civil limb.

The Court reiterates its reasoning in the Nadtochiy v. Ukraine case (cited above, §§ 20-22), in which it found that a similar case of violation of the Customs Code was criminal in nature and the purportedly customs-related administrative offences were in fact of a criminal character attracting the full guarantees of Article 6 of the Convention. The Court sees no reason to depart from that reasoning in the present case.

2. The applicant complained under Article 6 § 1 of the Convention that the domestic authorities had proceeded unlawfully in his case under the provisions of the Customs Code and not under the Code on Administrative Offences. He based this complaint on the fact that at the time when he had allegedly infringed customs regulations the Code on Administrative Offences contained no reference to the Customs Code as a procedural basis for consideration of cases concerning customs offences or for the imposition of penalties for such offences. Such a reference had appeared only later.

The Court reiterates that it previously considered several applications against Ukraine which had similar factual circumstances, referred to the same legal provisions, and contained identical reasoning (see Vovk and Trykashnyy v. Ukraine (dec.), nos. 39084/02 and 305/03, 17 June 2008, and Tarasyuk v. Ukraine (dec.), no. 39453/02, 24 June 2008). In those cases, the Court decided to examine such complaints under Article 7 of the Convention, which was also applicable in view of the findings under Article 6, and further found them manifestly ill-founded. In the Court ’ s opinion, there is no reason to depart from its findings in the present case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained that the domestic court had decided his case in his absence. He maintained that he did not know how long the corrections of the case file and verifications ordered by the court on 26 December 2003 would take and that he had not been under an obligation not to abscond; meanwhile he had left Ukraine for economic reasons. He noted that the domestic court did not know and could not possibly know his location, and therefore was not allowed to hold hearings in his absence.

The applicant relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

Article 6 § 1 of the Convention

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

The Court reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (see Kwiatkowska v. Italy (dec.), no. 52868/99, 30 November 2000 ). However, if it is to be effective for Convention purposes, a waiver of the right to take part in the trial must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance (see Poitrimol v. France , judgment of 23 November 1993, Series A no. 277-A, pp. 13-14, § 31 ). Furthermore, it must not run counter to any important public interest (see Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66).

The Court has also had occasion to point out that before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6 of the Convention it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003 ).

Furthermore, a person “charged with a criminal offence” must not be left with the burden of proving that he was not seeking to evade justice or that his absence was due to force majeure (see Colozza , cited above, p. 16, § 30). At the same time, it is open to the national authorities to assess whether the accused has shown good cause for his absence or whether there is anything in the case file to warrant finding that he was absent for reasons beyond his control (see Medenica , cited above, § 57; see also Sejdovic , cited above, §§ 87-88; and Hermi v. Italy [GC], no. 18114/02, § 75, ECHR 2006 ‑ ...).

The Court notes that the applicant participated in the court hearing, in which he was given an opportunity to advance any arguments in his defence and provide any piece of evidence in support of his submissions. It appears from the case file materials that the reasons for sending the case file back to the Customs Office had been technical and after corrections and additional verifications the Customs Office did not come back to the court with any new arguments in support of their position. They maintained as they had done before, in the applicant ’ s presence, that there were no records of the applicant ’ s taking the car across the border at the time and place he had alleged. The applicant did not suggest either that the domestic authorities had examined any new evidence or arguments in his absence or that he had any new arguments or proofs to present. Therefore, in the circumstances of the present case, the domestic court ’ s decision to continue with the case did not disclose any unfairness.

Furthermore, the Court notes that the domestic authorities took all necessary steps to find and inform the applicant about the scheduled hearings at his last known address and via his lawyer and his mother. Moreover, in his submissions to this Court the applicant himself acknowledged that, being aware of the pending proceedings, he left no information about the address at which he could be found and informed about any further proceedings in his case. Being represented by a lawyer of his choice, he could anticipate the consequences of his absence from the further court hearings.

In the light of the above, and taking account in particular of the conduct of the applicant and his lawyer, the Court considers that the Ukrainian judicial authorities were entitled to conclude that the applicant had waived, tacitly but unequivocally, his right to appear at further hearing before the Novozavodsky Court (see, mutatis mutandis , Battisti v. France (dec.), no. 28796/05, 2 December 2006).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant further complained that the proceedings were unfair and that the court was not impartial, in particular because it did not accept his version of events without confirmation therefore suggesting that he had to prove that he took the car out of Ukraine . He relied on Article 6 § 1, cited above, and Article 13 of the Convention. The latter Article reads as follows:

Article 13 of the Convention

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that it is not its task to act as a court of appeal or, as is sometimes stated, as a court of fourth instance, in respect of the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply the relevant rules of procedural or substantive law (see, among many other authorities, Vidal v. Belgium , judgment of 22 April 1992, Series A no. 235-B, p. 32, § 32, and Edwards v. the United Kingdom , judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34).

In so far as the applicant complained that he had to prove his compliance with his obligation to take the impugned vehicle out of country, it should be noted that even when the ultimate burden of proof lay on the relevant authorities, it would not preclude a requirement for the applicant to discharge an initial evidential burden of proof in challenging the information of the Customs Office (see, mutatis mutandis , Porter v. the United Kingdom (dec.), no. 15814/02, 8 April 2003). It is not apparent that he was prevented in any way from providing any evidence to support his account of events.

Having regard to the materials submitted by the applicant, the Court finds that the applicant has failed to substantiate any claim that the procedural guarantees contained in Article 6 were breached in his case.

As to the applicant ’ s complaint of lack of impartiality of the courts, the Court considers that the mere fact that, in the absence of any credible account by the applicant as to the fate of the car under customs control, the court decided against the applicant is not sufficient to conclude that it was not impartial.

The Court also notes that the applicant ’ s complaint under Article 13 is related to the same alleged procedural violations raised by the applicant under Article 6 § 1 of the Convention. Given the nature of the applicant ’ s complaints, the Court considers that in the present case the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis , the requirements of Article 13 being absorbed by those of Article 6 § 1 (see, mutatis mutandis , Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports of Judgments and Decisions 1997 VIII, p. 2957, § 41).

It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

4. The applicant complained that the decision of the Novozavodsky Court had imposed an excessive burden on him. He relied on Article 1 of Protocol No 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted that the interference with the applicant ’ s right to the peaceful enjoyment of his possessions was founded on the law and served the lawful purpose. Furthermore, they maintained that the interference in question could not be considered an excessive individual burden on the applicant.

The Court first observes that the confiscation order constituted a “penalty” within the meaning of the Convention. It therefore falls within the scope of the second paragraph of Article 1 of Protocol No. 1, which, inter alia , allows the Contracting States to control the use of property to secure the payment of penalties. However, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph and there must, therefore, exist a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see, among many examples, Allan Jacobsson v. Sweden (no. 1) , judgment of 25 October 1989, Series A no. 163, p. 17, § 55).

The Court notes that there is no dispute between the parties as to the interference with the applicant ’ s property rights in the present case. The provisions on which such interference was based had been clear and foreseeable, both at the time when the applicant undertook the obligation to take the car outside Ukraine and when the domestic authorities found him in breach of this obligation and ordered him to pay the pecuniary equivalent of the car instead of confiscation (see Relevant domestic law above).

The Court notes that the confiscation of the car was intended to secure the payment of customs duty and other charges. It was therefore carried out in accordance with the general interest within the meaning of Article 1 of Protocol No. 1.

Having regard to the above considerations, the Court finds that the domestic authorities cannot be said to have failed in their duty to strike a fair balance between the applicant ’ s property rights and the general interests of the community.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention

5. Additionally, the applicant raised various complaints under Articles 7, 8 and 10 of the Universal Declaration of Human Rights.

The Court points out that it has examined the issues of fair trial under the relevant provisions of the Convention and that the remainder of the applicant ’ s complaints are outside the competence of the Court and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention (see Nadtochiy , cited above, §§ 48-50) .

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Rait Maruste Registrar President