THIRD SECTION

DECISION

Application no. 11674/17 Sokol GAZULLI against Albania

The European Court of Human Rights (Third Section), sitting on 12 September 2023 as a Committee composed of:

Georgios A. Serghides , President , Darian Pavli, Oddný Mjöll Arnardóttir , judges , and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 11674/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 February 2017 by an Albanian and Canadian national, Mr Sokol Gazulli, who was born in 1970 and lives in Lezhë (“the applicant”), who was represented by Ms F. Gazulli, residing in Lezhë;

the decision to give notice of the application to the Albanian Government (“the Government”), represented by their then Agent, Ms B. Lilo, and subsequently by Mr O. Moçka, General State Advocate;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applicant was fined by the customs authority and was required to pre-pay a part of the fine before challenging it. The applicant complained that that requirement was in breach of his right of access to court under Article 6 § 1 of the Convention.

2 . After living for a number of years abroad, the applicant returned to Albania in March 2010. He alleged that at the time he had imported to Albania his personal car but had not gone through the usual import procedures at the border as the border officers were unable to advise him on the correct procedure to be followed.

3 . In April 2011 he used his car to travel abroad and subsequently re ‑ entered Albania.

4. In March 2012 the applicant requested from the relevant tax authority an exemption from custom duties on the car on the grounds that under domestic law emigrants returning to Albania were exempted from such duties in connection to their personal cars. The Ministry of Finance denied the request in April 2012 on the grounds that, pursuant to their records, the car had entered Albania in April 2011 (see paragraph 3 above), that is more than one year after the applicant’s return to Albania which had occurred in March 2010 (see paragraph 2 above).

5. Between 2012 and 2015 the applicant expressed his disagreement with that decision in electronic correspondence with the domestic authorities.

6. On 30 June 2015 the applicant was subject to a random inspection by customs officers. They seized his car, compiled the relevant records and referred the case to the Shkoder Custom Office for decision.

7 . On 3 July 2015 the Shkoder Custom Office noted that the applicant had failed to pay the custom duty in respect of his car. It also noted that the applicant had been aware that his exemption request had been denied and that he had not started judicial proceedings to challenge that decision. Accordingly, by a decision of the same date the Shkoder Custom Office ordered him to pay 347,611.5 Albanian Lek (ALL) in respect of the unpaid custom duty and a fine ( gjobë ) equal to 100% of the duty (i.e. a total of 695,223 ALL - approximately 5,604 euros (EUR)).

8. On 9 July 2015 the applicant challenged the above decision before the second instance administrative body, namely the General Directorate of Customs (“GDS”). On 3 August 2015 the GDS informed him that his challenge was inadmissible as, before challenging the decision of the first instance body, the applicant had failed to pay the disputed custom duty and 40% of the fine as required by Article 289 § 3 of the Customs Code (Law no. 8449 of 27 January 1999, as amended).

9. The applicant challenged both administrative decisions before the Shkodër Administrative Court which, on 14 October 2015, declared his action inadmissible on the grounds that the applicant had failed to exhaust the administrative remedies since the GDS had not reviewed the merits of the complaints due to a failure to comply with the admissibility requirements before that body.

10 . On an unspecified date the applicant lodged a special appeal with the Supreme Court. He argued that as an immigrant returning home he should have been exempted of the custom duty. On 17 December 2015 the Supreme Court upheld the lower court’s reasoning and conclusion without examining the merits of the fine.

11 . On an unspecified date the applicant complained before the Constitutional Court. One of his arguments was that that the rule under Article 289 § 3 of the Customs Code requiring him to pay the disputed custom duty and 40% of the fine before challenging the relevant administrative decisions amounted to a disproportional interference with the individuals’ right of access to court under Article 6 § 1 of the Convention. In the applicant’s view, that requirement was unfavourable to the appellants and could therefore discourage appeals in that field, it was also disproportional.

12 . On 11 November 2016 the Constitutional Court considered that the applicant’s constitutional appeal aimed at challenging in abstracto the constitutionality of the Customs Code, and the applicant had no legal standing in such proceedings. It therefore declared it inadmissible.

13. The application concerns the applicant’s complaint about an alleged breach of his right of access to court under Article 6 § 1 of the Convention on account of the requirement to pre-pay a part of the customs’ fine before being able to challenge it. It also concerns an alleged breach of Article 1 of Protocol No. 1 to the Convention.

THE COURT’S ASSESSMENT

14. Tax matters such as the ones that are now before the Court form part of the hard core of public-authority prerogatives, with the public nature of the relationship between the taxpayer and the community remaining predominant, despite the pecuniary effects which tax disputes necessarily produce for the taxpayer. It follows that Article 6 § 1 of the Convention is not applicable under its civil limb (see, most recently, Vegotex International S.A. v. Belgium ([GC], no. 49812/09, § 66, 3 November 2022).

15. However, the criminal limb of Article 6 § 1 has been found to apply to tax surcharges which are not intended as pecuniary compensation for damage but as a punishment to deter re-offending ( Jussila v. Finland [GC], no. 73053/01, § 38, ECHR 2006 ‑ XIV).

16. In the present case, besides the custom duty, the authorities imposed on the applicant an additional penalty equal to 100% of the duty (see paragraph 7 above), which prima facie appears to have had a punitive nature. In any event, it is not necessary to examine in detail the legal framework and nature of that penalty as the complaint is inadmissible for the reasons set out below.

17. The right of access to a court is not absolute. It may be subject to limitations permitted by implication, particularly regarding the conditions of admissibility of an appeal. However, these limitations must not restrict the exercise of the right in such a way or to such an extent that the very essence of the right is impaired. They must pursue a legitimate aim and there must be a reasonable proportionality between the means employed and the aim sought to be achieved (see Omar v. France ([GC] no. 24767/94, § 34, 29 July 1998).

18. In the present case the limitation to the applicant’s right of access to a court derived from the requirement to pre-pay the principal amount of the custom duty and 40% of the fine before challenging the debt reassessment. The applicant did not argue – and the Court has no reason to hold - that that requirement did not pursue a legitimate aim (compare with the reasoning in Leduc v. France , (dec.) [Committee], no. 16382/16, § 28, 17 October 2017, and the decisions cited therein).

19. As regards proportionality, in his submissions before the regular domestic courts the applicant insisted that as the original custom duty was unlawful, he should not be required to pay any amounts before challenging it. The applicant did not argue before those courts that the amount he was required to pre-pay was excessive or that it imposed an unreasonable or prohibitive barrier to the exercise of his right of access to court (see paragraph 11 above). Thus, the applicant essentially complained about the very obligation to pay derived from domestic law, rather than of its proportionality in his case. He also did not give the domestic authorities any factual elements on his financial situation so that those authorities could evaluate the proportionality of the requirement to pre-pay the amount in question against his financial standing (see, for a similar situation, Tcaciuc and Others v. Romania (dec.) [Committee], nos. 43695/05 and 5 others, § 28, 4 September 2018, with further references; and contrast with Loncke v. Belgium , no. 20656/03, § 51, 25 September 2007, where the applicant did raise an access to court argument). Although he invoked the right of access to court before the Constitutional Court (see paragraph 11 above), however, as noted by the Constitutional Court, these arguments were submitted in abstracto (see paragraph 12 above). In this connection, the Court reiterates that its task is not to review the relevant law and practice in abstracto , but to determine whether or not the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see, among other authorities, Schwarzenberger v. Germany , no. 75737/01, § 37, 10 August 2006; Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015).

20. In view of the absence of such arguments properly made in the domestic proceedings, the Court is unable to find that the applicant’s limitation of the right of access to court was disproportionate.

21. Lastly, as regards the applicant’s argument that the domestic authorities erred in law by holding that he was required to pre-pay the relevant amount before lodging a challenge against the fine, the Court does not discern any reason to hold that that finding was arbitrary or manifestly unreasonable (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, §§ 83 and 85, 11 July 2017).

22 . In the light of the above, the Court finds that the case does not disclose any appearance of a violation of the applicant’s right of access to court under Article 6 § 1 of the Convention.

23. Where an applicant has failed to comply with the domestic admissibility requirements, his or her application before the Court should in principle be declared inadmissible for failure to exhaust domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 72, 25 March 2014).

24. In the present case, the applicant’s domestic claim was declared inadmissible because he did not exhaust administrative remedies before going to court and that outcome was not inconsistent with the applicant’s right of access to court (see paragraph 22 above). It follows that the complaint under Article 1 of Protocol No. 1 to the Convention before the Court is inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 October 2023.

Olga Chernishova Georgios A. Serghides Deputy Registrar President