FIFTH SECTION

DECISION

Application no. 4870/09 Volodymyr Grygorovych BORYSOV against Ukraine

The European Court of Human Rights ( Fif th Section), sitting on 12 March 2019 as a Committee composed of:

Síofra O ’ Leary, President, Ganna Yudkivska, Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 21 January 2009,

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

1. The applicant, Mr Volodymyr Grygorovych Borysov, is a Russian national, who was born in 1953 and lives in Ternopil (Ukraine). He was granted leave to represent himself under Rule 36 of the Rules of Court. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Ivan Lishchyna.

2. The application concerns the alleged infringement of the applicant ’ s right to a fair trial and the alleged violation of his property rights.

3. On 19 June 2017 notice of the application was given to the Government.

4. The Russian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

A. The circumstances of the case

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

6 . In his application form the applicant indicated his nationality as Ukrainian. From the documents in the case file it transpired, however, that he was a Russian national. The Ukrainian Government noted in their observations that the applicant indeed was a Russian national with a permanent residence permit in Ukraine. The applicant confirmed the veracity of that statement, without further details.

7 . According to the applicant ’ s submissions, on 18 October 2007 he brought into Ukraine a car which he had bought abroad for his personal use. According to the Government, the car was likely to belong to the applicant ’ s daughter (see also paragraphs 8 and 20 below). As indicated in the ruling of the Ternopil City Court (“the Ternopi l Court”) of 7 August 2008 (see paragraph 11 below), the car was brought in under the temporary importation regime prohibiting any modifications to it other than usual wear and tear and obliging the importer to export it out of the country ’ s customs area within a year (see paragraph 14 below).

8 . On 12 December 2007 the police seized the above-mentioned car on the grounds that the applicant had breac hed the requirements of Article 336 of the Customs Code (see paragraph 17 below). As indicated in the memorandum of a customs official addressed to the deputy head of the Ternopil Customs Office on 15 February 2008, that breach consisted in the following. While Article 336 of the Customs Code prohibited any operations or transactions with goods or vehicles being under the customs control, the applicant ’ s daughter, Ms P., had published an announcement in a local newspaper about the sale of the car in question and had instructed the applicant to show it to potential buyers. Those potential buyers happened to be officials of the Ternopil Regional Department for Combatting Organised Crime (“the police officials”) who reported the suspected offence to the customs authorities.

9 . It appears from the ruling of the Ternopil Court of 7 August 2008 (see paragraph 11 below) that on the same date, 12 December 2007, the police officials drew up a report on the car seizure. As also indicated in that ruling, on 12 December 2007, 16 January and 18 January 2008 the applicant and Ms P. gave written explanations to the authorities. The case file before the Court does not contain a copy of the above-mentioned documents. The applicant did not mention them in his submissions to the Court.

10. On 11 February 2008 the Ternopil Customs Office drew up a report stating that the applicant had breached Article 336 of the Customs Code. Its copy in the case file before the Court is not readable. The internal memorandum of 15 February 2008 contained some explanations in that regard (see paragraph 8 above).

11 . On 7 August 2008 the Ternopil Court considered the case in the applicant ’ s absence. The court noted that the applicant had been duly notified about the hearing, but had failed to appear. By a final ruling, it found him guilty of the offence under Article 336 of the Customs Code and ordered confiscation of the vehicle. In setting the penalty, the court observed that more than two months had elapsed since the breach by the applicant of the customs rules and that a fine as an administrative penalty was no longer applicable (see paragraph 16 below).

12 . In May 2011 the customs authorities destroyed a number of documents for 2007, including those on the car import by the applicant on 18 October 2007 (see paragraph 7 above).

13 . In February 2014 there was a fire in the premises of the Ternopil Court, as a result of which the case file regarding the proceedings against the applicant was destroyed.

B. Relevant domestic law

14 . Article 204 of the Customs Code (“the CC”) 2002 (in force at the material time; repealed with effect from 13 March 2012) defined the “temporary importation regime” as a customs regime allowing import of goods in Ukraine subject to an obligation of their re-export out of the customs territory of Ukraine and prohibition of any modifications to them other than usual wear and tear. Article 208 of the CC stipulated that, as a rule, temporary importation regime could be applied for a year.

15 . Article 322 of the CC provided the following sanctions for breaches of customs regulations: (1) a warning; (2) a fine; and (3) confiscation of the goods which were the object of the offence.

16 . Article 328 of the CC provided that a warning and a fine could be imposed no later than two months after the infringement had taken place or, in case of a continuing infringement, within two months of its discovery. The sanction of confiscation was not subject to any such time-limits.

17 . Article 336 of CC prohibited operations with vehicles subject to customs control without a permit from customs authorities. It specified, in particular, that such operations could consist in changing a vehicle ’ s condition, using it or disposing of it. It provided for the following alternative sanctions for infringement of that rule: (i) a fine of 750 to 1,700 Ukrainian hryvnia (about 99 to 224 euros at the time) or (ii) confiscation of the vehicle.

COMPLAINTS

18. The applicant complained under Article 6 of the Convention that he had not been duly notified of the Ternopil Court ’ s hearing. He also complained, relying on Article 13 of the Convention, that the authorities had delayed the proceedings, leaving the domestic court no choice but to impose the more severe sanction of confiscation. Lastly, the applicant complained in substance that he had been deprived of his property arbitrarily.

THE LAW

19. The applicant complained that he had not been notified of the hearing before the Ternopil Court and had thus been prevented from presenting his position. He also complained that the authorities had deliberately delayed the examination of his case beyond two months, after which time imposing a fine was no longer possible and confiscation was the only sanction applicable. Furthermore, referring to the alleged arbitrariness of the confiscation measure, the applicant complained of a breach of his property rights. While the applicant relied on Articles 6 and 13 of the Convention, his complaints fall to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention reading as follows in the relevant part:

Article 6. Right to a fair trial

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”

Article 1 [of Protocol No. 1 to the Convention]. Protection of property

“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.”

20 . The Government observed that they had not been able to get access to the relevant domestic case files given that those had been destroyed (see paragraphs 12 and 13 above). In any event, the Government asked the Court to declare the application inadmissible for numerous reasons. Firstly, they contended that it could be regarded as an abuse of the right of application. The Government submitted that the applicant had initially provided untruthful information as regards his nationality (see paragraph 6 above) and that he had failed to provide any documents as regards his title to the car in question. The Government further observed that the applicant had omitted to provide any information to the Court regarding the sale announcement published by his daughter (see paragraph 8 above). The Government next submitted that the applicant ’ s complaint about the alleged breach of his property rights could also be dismissed as being incompatible ratione materiae with the provisions of the Convention, given that he had failed to show the existence of his possessions. Lastly, the Government argued that the application was manifestly ill-founded.

21. The Court does not consider it necessary to address each of the objections raised by the Government since, for the reasons which follow, it considers that the application is indeed manifestly ill-founded.

22. The Court notes that the question of the applicant ’ s notice of the hearing before the Ternopil Court was examined at that hearing. The court concluded that the applicant had been duly notified of i t (see paragraph 11 above). The Court is sensitive to the subsidiary nature of its task. It is not normally within the province of the Court to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them (see Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). Apart from the applicant ’ s submission to the contrary, no material has been adduced before this Court which could call into question the above-mentioned statement by the national court. According to the Court ’ s well-established case-law, Article 6 of the Convention cannot be construed as providing for a specific form of service of court documents (see, for example, Bats v. Ukraine (dec.), no. 59927/08, § 37, 24 January 2017, with further references). Even assuming that, as alleged by the applicant, the notification had not reached him, the Court has no sufficient basis before it to blame the authorities for that. The Court also finds it relevant to note that, as suggested by the case-file materials, the applicant had been provided with ample opportunity to adduce the arguments and evidence he considered relevant to his case at the pre-judicial stage of the proceedings. Thus, both the applicant and his daughter provided written explanations on three occasions, on 12 December 2007 and on 16 January and 18 January 2008 (see paragraph 9 above). While not contesting the accuracy of the reference to that fact in the Ternopil Court ’ s ruling, the applicant provided no factual details in that regard, let alone alleged that his arguments had not been addressed. It cannot therefore be stated that the overall fairness of his trial was undermined only owing to his absence from the court hearing.

23. As regards the applicant ’ s allegation that there had been a deliberate delay in the proceedings against him, which predetermined the applicable sanction, the Court is unable to discern any indication of bad faith on the part of the authorities. Apart from noting the delay between the date of the alleged offence and the pronouncement of the judicial decision, the applicant failed to show that the authorities had indeed deliberately sought to “wait” beyond the two-month period. He neither alleged that there had been any lengthy inactivity nor commented on the procedural developments that had taken place during the period in question. As regards the existence of the time-limit itself for applying a fine, the Court emphasises that its task is not to review domestic law in abstracto , but to determine whether the manner in which it was applied to, or affected, the applicant gave rise to a violation of the Convention (see Garib v. the Netherlands [GC], no. 43494/09, § 136, 6 November 2017, with further references). There is nothing to suggest that, had the applicant ’ s case been examined within two months, the domestic court would have imposed a fine rather than order confiscation. The Court does not therefore consider that the outcome of the administrative offence proceedings against the applicant was arbitrary.

24. Lastly, in so far as the applicant complained of a breach of his property rights, the Court cannot but agree with the Government ’ s submission that he failed to prove his title to the confiscated vehicle. The Court has held in its case-law that if an applicant does not produce any evidence of title to property, his complaints under Article 1 of Protocol No. 1 are bound to fail (see, mutatis mutandis , Sargsyan v. Azerbaijan [GC], no. 40167/06, § 183, ECHR 2015, and Lisnyy and Others v. Ukraine and Russia (dec.), nos. 5355/15 and seq., 5 July 2016). Certain circumstances in the present case might be interpreted as suggesting that the vehicle in question in fact belonged to the applicant ’ s daughter (see paragraphs 8 and 9 above). The applicant did not comment on those circumstances let alone clarify them. Nor did he provide the Court with a copy of a single document related to the purchase of that car or its importation into Ukraine.

25. In the light of the foregoing, the Court finds that the application is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must therefore be declared inadmissible in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 4 April 2019 .

Milan Blaško Síofra O ’ Leary Deputy Registrar President