FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39453/02 by Nataliya Mykhaylivna TARASYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 June 2008 as a Chamber composed of:

Peer Lorenzen, President, Rait Maruste,

Karel Jungwiert, Volodymyr Butkevych, Renate Jaeger, Mirjana Lazarova Trajkovska,

Zdravka Kalaydjieva, judge s , and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 11 October 2002,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

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, Ms Nataliya Mykhaylivna Tarasyuk, is a Ukrainian national who was born in 1975 and lives in Chernigiv . She was represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agent s , Mrs V. Lutkovska and Mr Y. Zaytsev , from the Ministry of Justice .

A. The circumstances of the case

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

On 22 May 2000 the applicant brought a car registered in Lithuania (a 1985 Volkswagen-Golf) into the customs territory of Ukraine . When crossing the border she undertook an obligation to re-export the car before 22 May 2001. She failed to do so, however.

On 15 April 2002 the applicant, upon request of the customs authorities, explained that the car had been brought to the Republic of Belarus and sold to unknown persons.

On 16 April 2002 she explained that she did not bring the car to Belarus but left it on the Ukrainian-Belarusian border.

On 17 April 2002 the Chernigiv Customs Office, in absence of records confirming that the impugned car had actually left Ukraine , drew up a report on an infringement of customs regulations due to the applicant ’ s failure to remove the above car from the customs territory of Ukraine (Article 113 of the Customs Code).

On 8 May 2002 the Customs Office submitted the above report to the Novozavodsky District Court of Chernigiv. Before the court the applicant explained that she had brought the car to the checkpoint on the Ukrainian- Belarusian border and then her husband had been supposed to take it away to Belarus . The applicant ’ s husband explained that he had sold a car on the border check-point to an unknown person. The Customs Office explained that the car was not registered as exiting Ukraine at the period mentioned by the applicant.

On 1 August 2002 the court found the applicant guilty of having failed to re-export the car in violation of Article 113 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car ’ s location was unknown, it replaced the confiscation with payment of 2,906.96 Ukrainian hryvynas (UAH) (about 558 euros (EUR)), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code.

On 18 September 2002 the Acting President of the Chernigiv Regional Court of Appeal refused the applicant ’ s request to initiate supervisory review proceedings in the case.

B. Relevant domestic law

The relevant domestic law is summarised in the case of Nadtochiy v . Ukraine ( no. 7460/03 , § § 13-14 , 22 April 2008 .)

COMPLAINTS

The applicant complained under Article s 6 § 1 and 13 of the Convention that the domestic court acted in violation of procedural and substantive law, and in particular that the domestic authorities had unlawfully proceeded in her case under the provisions of the Customs Code and not under the Code on Administrative Offences. She also referred to Articles 7, 8, and 10 of the Universal Declaration of Human Rights.

THE LAW

1. The Government maintained that the applicant failed to raise her complaints about erroneous application of the domestic law by the national court on the domestic level.

The applicant maintained that she had raised her complaints before the President of the Chernigiv Regional Court of Appeal in her request to initiate supervisory review proceedings in the case, which was the only means to raise her complaints on the domestic level.

The Court notes that the Ukrainian legal system provides no ordinary appeal against the decision of the first instance court in the administrative offence proceedings (see Gurepka v. Ukraine , no. 61406/00, § 60 , 6 September 2005 ). Therefore, the Court rejects the Government ’ s preliminary objection.

2. The applicant complained that the domestic authorities had unlawfully proceeded in her case under the provisions of the Customs Code and not under the Code on Administrative Offences. She based this complaint on the fact that at the time when she 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 reference had appeared only later.

The Government maintained that the Customs Code from the moment of its entry into force in March 1992 constituted a lex specialis with respect to the customs-related offences . At the time when the offence was committed by the applicant the Customs Code provided for the procedure and for the punishment applied in the applicant ’ s case. Therefore, there was no retroactive application of law in the instant case.

The Court, which is master of the characterisation to be given in law to the facts of the case, decided to examine the problem raised by the applicant under Article 7 of the Convention, which is the relevant provision and which provides insofar as relevant as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court notes that the Code on Administrative Offences and the Customs Code contained similar procedural provisions, including those on the imposition of penalties. Furthermore, Article 2 of the Code on Administrative Offences contained a general reference to other legal acts under which administrative liability could be established, and by the Amendment Act of 17 May 2001 the above Article was reworded and a direct reference to the Customs Code was included. Introduction of this direct reference further clarified relations between the Code on Administrative Offences and the Customs Code but does not, in the Court ’ s opinion, warrant the conclusion that prior to such clarification the procedural provisions of the Customs Code could not apply to cases concerning customs-related offences. Moreover, the Customs Code constituted lex specialis and lex posterior in relation to the Code on Administrative Offences, since it was adopted later and its Article 121 clearly provided that proceedings concerning infringements of c ustoms regulations should be conducted in accordance with the provisions of the Customs Code , and in accordance with other relevant legislation on administrative offences only where not regulated by the Code itself. In fact, Article 139 of the Customs Code clearly provided for confiscation regardless of the time of the offence and the ownership of the item to be confiscated. Article 149 of the Customs Code provided for replacement of the confiscation by the reimbursement of the item ’ s value if the item could not be confiscated (see Nadtochiy , cited above, § 33).

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 further complained that the proceedings were lengthy and unfair and that the courts were not independent. She relied on Article 6 § 1 and Article 13 of the Convention, which read , 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...”

Article 1 3 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. Furthermo re, it is the domestic courts that are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the ca se (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 King dom , judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, § 34).

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

As to the applicant ’ s complaint of lack of impartiality of the courts, this complaint is not substantiated by any evidence or at least explanation. The mere fact that the court decided against the applicant is not sufficient to conclude that it was not impartial.

As to the length of the proceedings, they lasted from mid-April until 1 August 2002 that was three and a half months for one level of jurisdiction. In the Court ’ s opinion, this period is not excessive to raise an issue under Article 6 § 1 of the Convention.

The Court further 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 th ese complaint are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention .

4. Additionally, the applicant raised various complaints under Article s 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) .

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President