Published on 24 April 2023

FIFTH SECTION

Application no. 43100/16 Eduard Igorovych ALEKSANDROV against Ukraine lodged on 12 July 2016 communicated on 3 April 2023

SUBJECT MATTER OF THE CASE

The application concerns the administrative offence proceedings in which the applicant, the assistant captain of a tugboat, was found liable for having failed to declare as “goods” to the customs authorities 98 tonnes of fuel in the boat tank and a hank of rope, both acquired when in international waters.

By the final decision of 15 February 2016, the Mykolayiv Regional Court of Appeal ordered the confiscation of the goods (fuel and rope) and imposed a fine on the applicant equal to the goods’ value (1,305,865 Ukrainian hryvnias (UAH); about 44,000 euros (EUR) at the time) as provided by Article 472 of the Customs Code. Given that the fuel had already been consumed at the time of the decision and therefore could not be confiscated in kind, the court ordered that the applicant pay another fine equal to the fuel’s value (UAH 1,255,865; about EUR 42,300 at the time). On 14 April 2016, in order to enforce the decision of 15 February 2016, the bailiffs seized the applicant’s movable and immovable property. No information has been provided by the applicant as to whether he has paid out the amounts ordered by the domestic court.

In September 2016 the applicant instituted court proceedings against the customs authorities seeking to declare unlawful their failure to seize the fuel - as a direct object of the offence - pending the above-mentioned administrative offence proceedings. On 16 September 2016 the Odesa District Administrative Court allowed the applicant’s claim. It found, inter alia , that no evidence was provided by the customs authorities that any action had been taken to comply with their obligation under Article 255 of the Customs Code to seize the fuel, which resulted in a breach of the applicant’s rights, since he had to bear substantial material consequences by way of paying twice the value of the fuel because it had been consumed and could no longer be confiscated. This decision was not appealed against and became final.

Relying on Article 1 of Protocol No. 1 the applicant complains that the customs legislation concerning the ship’s stores and ship’s equipment had been unclear and that the sanction imposed on him in the administrative offence proceedings was an unlawful and disproportionate measure, which placed an excessive burden on him.

QUESTIONS TO THE PARTIES

Regard being had to the sanction imposed on the applicant in the administrative offence proceedings, namely, the administrative fines he was ordered to pay, has the applicant been deprived of his possessions in the public interest, and in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? If so, did that deprivation impose an excessive individual burden on the applicant (see Immobiliare Saffi v. Italy, [GC], no. 22774/93, § 59, ECHR 1999-V)?