CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 août 2005

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Rozakis , President ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mr   K. Hajiyev ,   Mr   D. Spielmann, judges , and Mr S. Nielsen, Section Registrar, Having regard to the above application lodged on 25 November 2002, 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 The applicant, Mr Viktor Aleksandrovich Konovalov, is a Ukrainian national who was born in 1957 and lives in Moscow. He is represented before the Court by Mr M. Minayev, a lawyer practising in Moscow. The respondent Government are represented by Mr   P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Violation of the customs regulations and imposition of penalty On 19 March 1999, while travelling with his family to Ukraine, the applicant was stopped in the Moscow Region by road police officers. The police discovered that the applicant’s car had been brought into Russia on 8   January 1999 and that the customs had authorised its circulation in the Russian territory for two months only. On the same day the Podolsk Customs Office impounded the applicant’s car as the object of a violation of the customs regulations. On 23 March 1999 the Podolsk Customs Office opened a case against the applicant for his failure to take the vehicle out of the customs territory of the Russian Federation within the established time-limit, an administrative offence under Article 271 § 1 of the Customs Code. On 23 July 1999 an expert identified the applicant’s car as a Peugeot 305 having a depreciated value of 9,858 Russian roubles (“RUR”). On 30 July 1999 the customs office found the applicant guilty of a violation of Article 271 § 1 of the Customs Code and imposed a penalty equal to the depreciated value of the car. Pursuant to Article 379, the penalty was payable within fifteen days of receipt of the decision or, if an appeal has been lodged, within fifteen days of delivery of the final decision on that appeal. The applicant received a copy of the decision on the same day. On 11 August 1999 the Moscow Customs Directorate refused the applicant’s appeal against the decision of 30 July 1999. An appeal to a court lay against its refusal. On 21 August 1999 the applicant lodged a complaint against the Podolsk Customs Office with the Meshchanskiy District Court of Moscow. According to the applicant, the Podolsk post office confirmed that on 31   August 1999 a copy of the complaint was delivered to the Podolsk Customs Office. On 31 August 1999 the Meshchanskiy District Court determined that it did not have territorial jurisdiction to examine the complaint. 2.     Enforcement of the decision and sale of the applicant’s car On 25 August 1999 the decision of 30 July 1999 was submitted to the bailiffs’ service for enforcement through the sale of the car. On 17 September 1999 the bailiff commissioned a certain private company to organise the sale of the car. After several reductions of the sale price, on 15 December 1999 the car was sold for RUR 3,000. It appears that the applicant was not informed of these developments until much later. 3.     Judicial examination of the complaint against the customs office On 4 February 2000 the Moscow City Court ordered the Meshchanskiy District Court of Moscow to examine the merits of the applicant’s complaint against the customs office. On 14 April 2000 the Meshchanskiy District Court heard the applicant’s complaint. It found that the fact of the violation was not disputed by the parties and that the decision imposing the penalty had not been time-barred. The court dismissed the complaint. On 10 August 2000 the Moscow City Court upheld, on the applicant’s appeal, the judgment of 14 April 2000. 4.     The applicant’s attempts to contest the sale of his car (a)     Complaint to a prosecutor The applicant complained to a prosecutor’s office that the sale of his car had been unlawful as at the time it was effected his appeal against the customs office’s decision was pending. On 24 May 2001 the South-Western transport prosecutor’s office sent a letter to the head of the Podolsk Customs Office. A deputy prosecutor determined that the decision of 30 July 1999 had been enforced not in compliance with Article 376 of the Customs Code. Having received, on 24   September 1999, a copy of the applicant’s appeal to a court, the Podolsk Customs Office did not forward this information to the bailiff and did not suspend the enforcement proceedings. The deputy prosecutor recommended to avoid similar violations in the future, yet in the applicant’s case he refused to take action because “the State interests had not been harmed”. (b)     Proceedings against the bailiffs’ service The applicant complained about the bailiff’s acts to a court. He submitted, in particular, that he had not been notified of the opening of the enforcement proceedings, that he had not been informed of re-evaluation of the car and that the car had been sold outside the two-month time-limit. On 14 June 2001 the Podolsk Town Court of the Moscow Region delivered a judgment. It found that the representative of the Podolsk bailiffs’ service could not show that the applicant had been notified of the enforcement proceedings and re-evaluation of his car. Nor could he explain what actions had been undertaken by the bailiff to identify the applicant’s sources of income or other property and why the car had not been offered to the creditor upon expiry of the two-month time-limit and why instead it had been sold three months later. The court noted that the case-file of the enforcement proceedings contained an act on the impossibility to enforce dated 21 December 1999, but the documents on which the act had been founded were missing. The court made a declaratory judgment that the enforcement procedure had been carried out not in compliance with the Law on Enforcement. The judgment of 14 June 2001 was not appealed against. (c)     Proceedings against the customs office The applicant also lodged a complaint against the Podolsk Customs Office. He submitted, in particular, that the office had failed to suspend the enforcement proceedings pending the outcome of his complaint to a court. On 12 March 2002 the Podolsk Town Court of the Moscow Region dismissed the complaint. As regards the allegedly premature transfer of the car to the bailiffs, the court held as follows: “The car taken from [the applicant] was a piece of evidence that, pursuant to Article 327 of the Customs Code, was to be kept until the time-limit for lodging an appeal against the decision of the customs office... would have expired or until a higher customs office or a district (town) court would have made a decision... The car was handed over for sale to the court bailiffs’ service after the higher customs office replied to [the applicant’s] complaint; [the applicant] did not show that, before the handover of the car had been effected, he had informed the Podolsk Customs Office of his having lodged a complaint with a court; a receipt on p. 100 of the case file is not an evidence of an appropriate notification because [the text of] the notification is missing...” On 30 May 2002 the Moscow Regional Court, on the applicant’s appeal, upheld the judgment of 12 March 2002. 5.     Proceedings for compensation The applicant sued the Moscow Region Directorate of the Ministry of Justice for pecuniary and non-pecuniary damage caused by the court bailiff. On 27 February 2003 a Justice of the Peace of the 13th Court Circuit of the Zyuzino District of Moscow granted the applicant’s claims in part. He established that the applicant’s car had been billed for sale on 17   September 1999 and that the price had been lowered on 6 October, 19   October, 2   November and 8   December 1999. On 15 December 1999 it was sold for RUR 3,000. The court found that, in breach of the requirement of the Enforcement Act, the applicant had not been informed of the enforcement proceedings, the bailiff had not attempted to identify his other assets or money; the creditor had not been offered to keep the car or to contest the sale price of the car. The court noted the decision of the Podolsk prosecutor’s office of 22 October 2002 whereby criminal proceedings against the court bailiff were discontinued. The decision established that the bailiff might have been guilty of professional negligence (Article 293 § 1 of the Criminal Code), but the prosecution was time-barred. The court ruled that there was a causal link between the bailiff’s unlawful actions and the pecuniary damage caused to the applicant and ordered the Ministry of Justice, as the bailiff’s employer, to reimburse RUR   6,858 to the applicant (the difference between the car valuation and the sale price) and to pay RUR 500 in respect of non-pecuniary damage, RUR 2,000 for legal costs and also to bear court fees. On 25 December 2003 the Zyuzinskiy District Court of Moscow quashed, on the Ministry of Justice’s appeal, the judgment of 27 February 2003. The court held that the applicant failed to prove that the bailiff’s actions had caused him pecuniary or non-pecuniary damage and the violations committed by the bailiff had been of “a procedural nature”. The judgment of the District Court was final and no appeal lay against it. B.     Relevant domestic law Civil Code of the Russian Federation Article 1069 provides that the State and municipal authorities and their officials shall be liable for the damage caused by their unlawful acts (failures to act). Compensation is payable from the federal, regional or municipal treasury. Article 1068 provides that a legal entity is liable for the damage caused by its employee in the performance of his work duties. Customs Code of the Russian Federation (Law no. 5221-I of 18 June 1993, in force at the material time) A violation of the customs regulations may be punishable with, in particular, forfeiture of the goods or vehicles that were the object of the offence or payment of a penalty equal to their value (Article 242 §§ 4, 5). Material evidence includes the goods and vehicles that were the objects of a violation of the customs regulations. Such evidence is kept in the warehouse until the time-limit for lodging an appeal has expired or the appeal has been decided upon by the higher customs office or a court (Article 327). The goods and vehicles that were the object of a violation of the customs regulations shall be impounded. If the person who is found liable for a violation of the customs rules has no permanent residence in the Russian Federation, his goods, money or vehicle may be charged as security for the payment of fines and penalties (Article 337). The order on payment of a penalty may be enforced by the customs office after the time-limit for lodging an appeal against it expired (Article 378). The lodging of an appeal shall suspend enforcement (Article 376). The penalty is payable within fifteen days after the final decision refusing the appeal against the order was issued. If the penalty has not been paid within this time-limit, it may be recovered from the goods charged as security for the payment or from the person’s other assets or income (Article   379). Enforcement Act (Law no. 119-FZ of 21 July 1997) A copy of the decision on the opening of enforcement proceedings shall be sent to the debtor within one day after it was issued (section 9 § 4). The creditor and the debtor are the parties to the enforcement proceedings (section 29 § 1). Recovery may be obtained out of the debtor’s property if the debtor has no sufficient cash funds in Russian roubles or foreign currency (section 46). The debtor’s property is to be valued by the bailiff at the market price prevailing on the date of the writ of enforcement (section 52). The charged property may be sold within two months of the date of the charging order. If the property has not been sold within two months, the creditor shall have the right to keep the property. If the creditor refuses it, the property shall return to the debtor and the writ of enforcement returns to the creditor (section 54). COMPLAINTS The applicant complained under Article 6 of the Convention and Article   1 of Protocol No. 1 that he was deprived of his car not in accordance with the law and that he was refused compensation for unlawful actions of a State official. THE LAW 1.     The applicant complained under Article 1 of Protocol No. 1 that the sale of his car had not been effected in accordance with the law. Article 1 of Protocol No. 1 provides as follows: “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.” The Government submit that the decision to transfer the applicant’s car to the bailiff for sale was lawful because the customs office was not informed of the applicant’s application to a court. The sale of the car was justified, having regard to the applicant’s Ukrainian nationality, his permanent residence in Ukraine and the fact that he had no other property in Russia. The domestic courts correctly determined that no damage had been caused to the applicant, as the breaches of the enforcement procedure committed by the bailiff did not, as such, prove that the damage had been incurred. The applicant retorts that he was deprived of his property without a judicial decision. According to the decision of 23 March 1999, his car was impounded as the object of the violation, that is material evidence which had to be returned to the legal owner in accordance with Article 327 of the Customs Code. No decision on charging the car as security for the payment of penalty has ever been issued. Moreover, the Government’s submission that the customs office was not aware of the appeal is untrue because on 31   August 1999 the post office delivered a copy of the appeal to the customs. The applicant considers that the procedurally defective sale of the car on the basis of an unlawful decision of the customs office violated his rights under Article 1 of Protocol No. 1. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The applicant complained under Article 6 of the Convention that all the proceedings before the domestic courts had been unfair because they had failed to redress the violation of his property rights. Article 6 provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...” The Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, e.g. , Cekic and Others v. Croatia (dec.), no. 15085/02, 9   October 2003). Turning to the facts of the present case, the Court finds that there is nothing to indicate that the domestic courts’ evaluation of the facts and evidence presented in the applicant’s case was incompatible with Article 6 of the Convention. The applicant, represented by a lawyer, was fully able to present his case and challenge the evidence of the other party, public hearings were held and the courts’ decisions were satisfactorily reasoned. Having regard to the facts, as submitted, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention. It follows that this part of the application manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the applicant’s complaint about an interference with his property rights as regards the allegedly procedurally defective sale of his car; Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President