FIFTH SECTION

Application no. 17544/07 JAKOB ’ S CENTER D.O.O. against Slovenia lodged on 10 April 2007

STATEMENT OF FACTS

The applicant, JAKOB ’ S CENTER d.o.o ., is a private company, whose registered office is in Zgornji Brnik . It is represented before the Court by Mr I. Trebec , a lawyer practising in Sežana .

A. The circumstances of the case

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

At the time of the events at issue, the applicant company was a freight agency acting in the capacity of a customs agent, handling the clearance of goods for the importers and exporters at a border crossing Italy and Slovenia .

On 15 November 1997 the applicant company was engaged by a transport operator to carry out the customs transit procedure for the importation of goods coming from Italy , which were supposedly intended for export to Bosnia and Herzegovina . The goods were accompanied by the invoices issued by an Italian dealer to the customer, a Bosnian company. Having submitted the import customs declaration, the applicant company thus assumed liability for the payment of customs duties. However, as the goods, which entered the Slovenian territory at the Krvavi potok – Kozina border crossing (the customs office of departure), were destined to leave this territory at the Obrežje border crossing (the customs office of destination), no customs duties were imposed or paid at the time. Pursuant to the applicable legislation, a copy of the transit documents and a consignment note, signed and stamped by the customs office of destination, was returned to the customs office of departure in the 48 hours since the import.

At an unspecified time the national authorities detected the criminal activity of P.K., a customs official, who, together with his accomplices, was purchasing goods in Italy on behalf of a fictitious Bosnian company, arranged for the transport of these goods to Slovenia and then took them over once they entered the Slovenian territory. P.K. instructed the transport operators to declare the goods for transit procedure, assuring them that the customs duties would be paid once the goods were unloaded in Slovenia . When the goods crossed the border, P.K. took over the transit documents and, assisted by his accomplices, forged the entries in these documents, signed them with the name of a fictitious person and stamped them to look like they had been completed by the customs office of destination. This forged copy of the documents was then returned to the customs office of departure.

On 24 April 1998 a criminal investigation was opened against P.K. and his accomplices. Subsequently, his employment at the customs office was terminated and he was convicted for several counts of smuggling.

A criminal investigation was also opened against P.K. in Italy where the authorities inspected his safe deposit box and seized its contents including three stamps, 1,225,000 Austrian Schilling (approximately 89,024 euros ( EUR ) ) and 1,370,000 German Mark (approximately EUR 700,470).

The criminal charges against P.K. with regard to the offence resulting in the imposition of the customs debt on the applicant company were eventually rejected on 10 December 2003, owing to the expiry of the statute of limitations.

Meanwhile, on 2 March 1998 the Sežana Customs Office imposed on the applicant company the payment of customs debt in the amount of 2,265,033 Slovenian tolars (approximately EUR 9,452) due on the goods imported on 15 November 1997. It was stated in the decision that the Obrežje Customs Office had established that, after the transit procedure regarding these goods had already been discharged, the transit documents bearing the correct control number had been signed by a person who had never been employed by that customs office. The customs authorities then verified with the Croatian customs authorities whether the goods had been declared in Croatia , and it turned out that they had in fact not crossed the border. The applicant company had been informed thereof and called upon to provide proof of the correct completion of the transit procedure; however, it had failed to do so. The Sežana Customs Office therefore concluded that, as the goods had been unlawfully introduced into the customs territory, customs debt was incurred, and the applicant company as the principal in the transit procedure, having submitted the import customs declaration, was liable for its payment (Article 144 of the Customs Act applicable at the material time).

The applicant company appealed against the decision, arguing that it had not been given the opportunity to inspect the files and establish the facts of the matter. The applicant company also maintained that the fact that the transit documents had been returned from the Obrežje Customs Office to the Sežana Customs Office, while the goods had apparently not left the Slovenian territory, could only be explained by criminal actions of customs officials.

On 20 October 2000 the Customs Administration of the Republic of Slovenia dismissed the applicant company ’ s appeal, finding that while the goods in question had been unlawfully removed from customs supervision (Article 145 of the Customs Act applicable at the material time) due to no fault of the applicant company, the latter as the principal nevertheless was liable for the payment of the customs debt. Moreover, the Customs Administration noted that any unlawful activity of the customs officials bore no relevance to the applicant company ’ s duty to pay the debt.

The applicant lodged an administrative action against this decision, arguing that the goods had been unlawfully removed from customs supervision by third persons who, according to the provision of Article 145 of the Customs Act, should have been made liable for the payment of customs debt. The applicant company also added that the State had evaded providing answers with regard to the criminal actions committed by its employees, the customs officials, in order to recover the customs debt from the applicant company.

On 21 June 2002 the Administrative Court dismissed the applicant company ’ s action by stating that, as the customs debt had been incurred, which was not disputed by the applicant company, the applicant company as the principal was liable for its payment. Moreover, the court held that the applicant company could not relieve itself of this liability on account of potential unlawful actions committed by the customs officials.

The applicant company appealed, reiterating the arguments it had raised in its previous applications.

On 10 March 2005 the Supreme Court dismissed the appeal, confirming the position of the lower instances that, by acting as the principal in the transit procedure, the applicant company had assumed the risk of payment of the customs debt. The court based the imposition of payment on yet another legal basis, Article 146 of the Customs Act according to which the customs debt could also be incurred through non-fulfilment of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they were placed.

The applicant company lodged a constitutional complaint against the judgment.

On 20 October 2006 the Constitutional Court refused to accept the applicant company ’ s complaint for consideration.

B. Relevant domestic law

At the time of the events at issue, the customs duties were regulated by the Customs Act, which, in so far as relevant, provided as follows:

Article 144

“1. A customs debt on importation shall also be incurred through:

(a) the unlawful introduction into the customs territory of goods liable to import dut i es ...

...

4. The debtors liable for the payment of the customs debt referred to in Paragraph 1 shall be:

– the person who introduced the goods into the customs territory ... unlawfully,

– any persons who participated in the unlawful introduction of goods and who were aware or should have been aware that such introduction was unlawful, and

– any persons who acquired or held the goods in question and who were aware or should have reasonably been aware at the time of acquiring or receiving the goods that they had been introduced into the customs territory unlawfully.”

Article 145

“1. A customs debt on importation shall also be incurred through the unlawful removal from customs supervision of goods liable to import duties.

...

3. The debtors liable for the payment of the customs debt referred to in Paragraph 1 shall be:

– the person who removed the goods from customs supervision,

– any persons who participated in such removal and who were aware or should have been aware that the goods were being removed from customs supervision,

– any persons who acquired or held the goods in question and who were aware or should have been aware at the time of acquiring or receiving the goods that they had been removed from customs supervision, and

– where appropriate, the person required to fulfil the obligations from the temporary storage of the goods or from the use of the customs procedure under which those goods are placed”.

Article 146

“(1) In cases other than those referred to in Article 145, a customs debt on importation shall also be incurred through:

(a) non-fulfilment of one of the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they were placed;

...

(3) In cases referred to in Paragraph 1 of this Article the debtor shall be the person who is required, according to the circumstances of the case, either to fulfil the obligations arising, in respect of goods liable to import duties, from their temporary storage or from the use of the customs procedure under which they had been placed, or to comply with the conditions governing the placing of the goods under that procedure.”

Article 150

“Where several persons are liable for payment of one customs debt, they shall be jointly and severally liable for such debt.”

COMPLAINTS

1. The applicant company complains under Article 6 of the Convention that it incurred the customs debt without any examination of its liability for acts of third persons, notably for those of a customs official whose criminal offences resulted in the imposition of the customs debt.

2. Moreover, the applicant company complains under the same Article that, as the criminal offences the customs official had been charged with were declared time-barred, it was unable (a) to obtain a proof of the forgery of the customs documents and of the release of the goods in question into circulation in the national territory, (b) to show that the unlawful acts resulting in the imposition of the customs debt had been committed by the said official and (c) to enforce its rights as the civil party in the proceedings.

3. Finally, the applicant company, invoking Article 1 of Protocol No. 1 complains that it was imposed by the State, in breach of the domestic law, to pay the customs debt for goods smuggled and sold by a customs official, and that regardless of the fact that the State could have claimed the customs debt from the said official.

QUESTION TO THE PARTIES

Did the applicant company ’ s liability for the payment of customs debt incurred through illegal activities of third persons, among whom customs officials, strike a “fair balance” between the company ’ s right to peaceful enjoyment of its possessions and the general interest of ensuring the respect of the customs provisions?