Communicated on 19 May 2015

FIRST SECTION

Application no. 1962/12 Mate MATIĆ against Croatia lodged on 29 December 2011

STATEMENT OF FACTS

The applicant, Mr Mate Matić , is a Croatian national, who was born in 1956 and lives in Zagreb . He is represented before the Court by Ms V. Drenški Lasan , an advocate practising in Zagreb .

A. The circumstances of the case

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

The applicant is an advocate practising in Zagreb.

On 13 November 2003 he bought a car, in particular BMW X 5, from a car dealership operated by the company F. for 494,000 Croatian kunas (HRK). On the same day the car was registered in the applicant ’ s name in the register of motor vehicles of the Ministry of the Interior.

On 19 December 2003 the police authorities commenced inquiry into the vehicle ’ s origin, suspecting that it had been stolen. It was eventually established that the car had not been stolen but that it had been imported into Croatia from Germany on the basis of a forged customs declaration by a certain Mr D.P., the brother of the company F. ’ s sole shareholder and director Mr G.P.

1. Administrative-offence proceedings

On 24 September 2004 the police authorities instituted administrative-offence proceedings ( prekršajni postupak ) before the Customs Administration ( Carinska uprava ) against the company F., its director G.P. and his brother D.P. The applicant was not charged with any offence.

By a decision of 18 May 2007 the Customs Administration found the company F. and its director guilty for selling undeclared goods to the applicant – an administrative offence defined in section 243(1) of the Customs Act – and imposed fines of HRK 70,000 and 10,000 respectively. In particular, since G.P. had stated during the proceedings that his brother had told him that he had brought the car in question from Germany into Croatia without declaring it to the customs authorities, the Customs Administration found that G.P. had known that the car in question had been brought into Croatia illegally – a constitutive element of the offence defined in section 243(1) of the Customs Act. Since G.P. lodged a belated appeal against that decision, it became final as early as on 17 August 2003.

By a decision of 22 May 2007 the Customs Administration temporarily stayed the proceedings in so far as they concerned the accused D.P. It was established that he was out of reach of the Croatian authorities who thus could not secure his participation in the proceedings because he was serving a prison sentence in Slovenia.

2. Administrative proceedings

Meanwhile, on 29 September 2004 the Customs Administration instituted administrative proceedings against the company F., its director G.P. and the applicant with a view to collecting the customs debt due on the importation of the applicant ’ s car.

By a decision of 2 February 2005 the Customs Administration ordered the company F., its director and the applicant to pay jointly and severally the customs debt totalling HRK 113,747.58. In s o deciding it relied on section 205(5) sub-paragraph (c) of the Customs Act according to which owners or possessors of contraband goods were equally liable for the customs debt as the person who had illegally brought those goods into the country.

The applicant appealed arguing that he had not been aware that his car had been brought into Croatia in breach of customs regulations. Since the appeal did not suspend the decision from becoming enforceable, on 22 February 2005 the applicant alone paid the customs debt in full.

On 26 January 2006 the Ministry of Finance ( Ministarstvo financija ), as the second-instance administrative authority, allowed the applicant ’ s appeal, quashed the first-instance decision of the Customs Administration and remitted the case. It held that the contested decision, in so far as it concerned the applicant, was unintelligible, based on incomplete facts and in breach of procedure because he had not been heard in the proceedings.

In the resumed proceedings, on 3 November 2006 the Customs Administration took statement from the applicant.

By a decision of 10 May 2007 the Customs Administration again found the applicant jointly and severally liable with the company F. and its director for the customs debt.

The applicant again appealed reiterating his earlier arguments.

On 28 August 2008 the Ministry of Finance dismissed the applicant ’ s appeal and upheld the first-instance decision. It held that the applicant had failed to check whether his car had been legally imported.

The applicant then brought an action for judicial review in the Administrative Court ( Upravni sud Republike Hrvatske ).

By a judgment of 17 November 2010 the Administrative Court dismissed the applicant ’ s action. The relevant part of that judgment reads as follows:

“The court accepts the view that the plaintiff, when buying the car at issue, should have verified whether it was legally imported. The plaintiff exercises the profession of an advocate and knows the law. [He] could have thus suspected that in the given circumstances the importation of the car in question was illegal. It is evident from the case-file that it was established, through the verification with the Customs Administration ’ s department for prevention of smuggling, that the company F. is not recorded in the register of export-import companies. [This means that] in the period between 1 January 2002 and 9 January 2004, that is, at the time the car at issue was imported, it did not import [cars or] any [other] goods into Croatia. By further checks it was found that the company in question had not paid any excise, tax or customs duties, which undoubtedly indicates that it operated illegally. Having regard to the above, the court finds correct the conclusion of the administrative authorities that the plaintiff must have known in the given circumstances that the car in question was illegally imported into Croatia. The Customs Administration was therefore entitled to find that, beside the importer, the plaintiff was also customs debtor within the meaning of section 205 of the [Customs Act].”

The applicant then lodged a constitutional complaint alleging violations of his constitutional rights to fair proceedings and non-discrimination.

By a decision of 12 July 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared his constitutional complaint inadmissible for not raising any constitutional-law arguments, and served its decision on his representative on 1 September 2011.

B. Relevant domestic law

The Customs Act

1 . The relevant provision s of the Customs Act ( Carinski zakon , Official Gazette, nos. 78/99, 94/99, 117/99, 73/00, 92/01, 47/03, 140/05, 138/06, 60/08, 45/09 and 56/10), which was in force between 1 January 2000 and 30 June 2013, reads as follows:

Section 205

“(1) Customs debt on importation is also created:

(a ) by the unlawful entry of goods into the customs terri tory of Croatia ,

( b ) ...

(2 ) ...

(3) C ustoms debt arises at the moment of unlawful entry of goods into the customs terri tory of Croatia .

(4 ) ...

(5) [Customs] debtors are:

...

(c) person s who have acquired the goods in question in the ownership or possession although at the time they acquired or received the goods they knew or in the circumstances must have known that the goods had been illegally brought into the customs territory of Croatia .. . ”

Section 217

“ If several person s are liable for payment of the customs debt, they shall be jointly and severally liable.”

Section 241(1)

“ A fine of between 3 ,000 to 900,000 kuna s for an administrati ve offence shall be imposed on a legal person, or of between 1,000 to 100,000 kuna s on the legal entity ’ s official or a natural person:

1) if when entering or leaving the customs territory without declaring it at customs bring s or attempts to bring goods across the border crossing ( section 49 paragraph 1) ...”

Section 243 (1)

“ Legal entities and their officials, or natural person s which are found in the possession of the goods or which bu y, sell, hand over , receive as a gift, con ceal, receive for storage or for transport, use or receive on any other ground the goods for which they know or, under the circumstances could have know n that it was the object of an offence referred to in section 240 or 241 of this Act, shall be punished as if they had themselves committed the offenc e, [and so] by the same penalty prescribed for the perpetrator . ”

COMPLAINTS

The applicant complains under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 thereto, and under Article 1 of Protocol 12 to the Convention that, in particular in view of the reasons given by the Administrative Court, finding him liable for, and ordering him to pay the customs debt constituted discrimination on the ground of his profession and/or education.

QUESTIONS TO THE PARTIES

1. Was the decision of the domestic authorities ordering the applicant to pay the customs debt due on the importation of his car, in violation of his right peaceful enjoyment of possessions and thus contrary to Article 1 of Protocol No. 1 to the Convention, in that it was arbitrary or manifestly unreasonable, or because it imposed on him an excessive individual burden?

2. In the alternative:

(a) Did the applicant suffer discrimination on the ground of his profession in the enjoyment of his Convention right to peaceful enjoyment of his possessions, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 thereto?

(b) In the negative, did the applicant suffer discrimination on the ground of his profession in the enjoyment of some right set forth by domestic law, contrary to Article 1 of Protocol No. 12 to the Convention?