FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application s no s . 39084/02 and 2305/03 by Volodymyr Kuzmych VOVK and Vasyl Ivanovych TRYKASHNYY against Ukraine lodged , respectively, on 17 July and 28 December 2002

The European Court of Human Rights (Fifth Section), sitting on 17 June 2008 as a Chamber composed of:

Peer Lorenzen , President, Karel Jungwiert , Volodymyr Butkevych , Renate Jaeger , Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , judges, and Stephen Phillips, Deputy Section Registrar ,

Having regard to the above application s lodged , respectively, on 17 July and 28 December 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant s ,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Volodymyr Kuzmych Vovk, is a Ukrainian national who was born in 1954 and resides in the village of Slabyn in the Chernigiv region.

The second applicant, Mr Vasyl Ivanovych T rykashnyy, was a Ukrainian citizen born in 1948 who died on 1 3 February 2004. By letter of 16 August 2007 , the applicant ’ s son informed the Court that he wished to pursue the application .

The applicants were represented before the Court by Mr I. Uvarov, a lawyer practising in Chernigiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev .

A. The circumstances of the case

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

1. Proceedings against the first applicant

On 16 October 1999 the first applicant brought a car registered in Lithuania (a 1985 BMW-323) into the customs territory of Ukraine . When crossing the border he undertook an obligation to re-export the car before 16 October 2000. He failed to do so, however.

On 22 April 2002, after several unsuccessful attempts to summon the applicant, the Chernigiv Customs Office, in the applicant ’ s absence, 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 13 June 2002 the applicant was summoned to the Novozavodsky District Court of Chernigiv. Having heard the applicant, who explained that the impugned car had broken down and he had given it to a friend who had taken it away, the court found the first 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 7,025.24 Ukrainian hryvnyas (UAH) (about 1,448.16 euros (EUR)), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code.

On 9 July 2002 the President of the Chernigiv Regional Court of Appeal refused the applicant ’ s request to initiate supervisory review proceedings in the case.

2. Proceedings against the second applicant

On 23 June 1999 the second applicant brought a car registered in Lithuania (a 1985 Mercedes Benz-100) into the customs territory of Ukraine . When crossing the border he undertook an obligation to re-export the car before 23 June 2000. He failed to do so, however.

On 11 May 2002, in the applicant ’ s absence, the Chernigiv Customs Office 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 18 June 2002 the second applicant was summoned to the Novozavodsky District Court of Chernigiv. Having heard the applicant, who explained that he had given the car to a certain Ms S. in payment for debts, but refused to give her address, the court returned the case to the customs authorities because of a number of procedural mistakes made by the latter in drawing up the report on an infringement of customs regulations. The customs authorities drew up a new report and sent it to the court.

On 25 October 2002 the court examined the case and found the second 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, replaced the confiscation with payment of UAH 9,805.24 (about EUR 1,947.97 ), which corresponded to the value of the car, in accordance with Article 149 § 3 of the Customs Code.

On 3 December 2002 the 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 s complained under Article s 6 § 1 and 13 of the Convention that the domestic courts acted in violation of procedural and substantive law, and in particular that the domestic authorities had unlawfully proceeded in their cases under the provisions of the Customs Code and not under the Code on Administrative Offences. The second applicant also complained that he was twice found guilty of the same offence, since the customs authority drafted a report on an infringement of customs regulations twice . They also referred to Articles 7, 8, and 10 of the Universal Declaration of Human Rights.

THE LAW

1. The Government maintained that the proceedings in the applicants ’ cases had not been criminal in nature and therefore the applicants ’ complaints were incompatible ratione materiae . They advanced the same arguments as in the case of Nadtochiy v . Ukraine (cited above , § § 17-18). The applicants agreed with the Government but maintained that the proceedings affected their 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 purported ly 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 applicants complained that the domestic authorities had unlawfully proceeded in their case under the provisions of the Customs Code and not under the Code on Administrative Offences. They based this complaint on the fact that at the time when they 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.

They also complained that before 1 December 2000 Article 149 of the Customs Code had provided that the customs authorities and not the courts were competent to order confiscation or its replacement with a sum of money. Therefore they considered that the courts were not competent to decide on confiscation of cars, given that the alleged infringement of customs rules by the applicants had taken place prior to 1 December 2000.

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 applicants 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 recalls its findings about the applicability of Article 6 under its criminal head to the impugned proceedings and concludes that these findings are equally pertinent to the issue of the applicability of Article 7.

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).

As to the complaint that the domestic courts were not competent to order confiscation at the time when the offences were committed, the Court notes that the measures themselves – confiscation or its replacement by the reimbursement of the item ’ s value – were provided for both at the time of the offences and at the time when the offences were discovered. The fact that these measures became subject to judicial control as of 1 December 2000 could not be said to be to the applicants ’ detriment because such development of the legislation improved the procedural safeguards in the event of confiscation.

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 applicants further complained that the proceedings were unfair and that the courts were not independent. They 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 ... 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 s , the Court finds that the applicant s ha ve failed to substantiate any claim that the procedural guarantees contained in Article 6 were breached in their case s .

As to the applicants ’ 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 applicants is not sufficient to conclude that it was not impartial.

The Court further notes that the applicants ’ complaints under Article 13 are related to the same alleged procedural violations raised by the applicants under Article 6 § 1 of the Convention. Given the nature of the applicants ’ 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 this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention .

4. The second applicant complained that the customs authorities drew up a new report on an infringement of customs regulations after the original report had been sent back by the court. He considered that this amounted to being found guilty twice for the same offence. The Court considers that this complaint falls to be considered under Article 4 of Protocol no. 7 which provides in so far as relevant as follows:

“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

The Court considers that the drawing up of a new report on an infringement of customs regulations for resubmission to the court instead of the original one constituted a continuation of the same proceedings against the applicant for the purposes of the n on bis in idem principle.

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 s 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 applicants ’ 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

Decides to join the applications;

Declares the application s inadmissible.

             Stephen Phillips Peer Lorenzen Deputy Registrar President