CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 octobre 2016

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CROATIA   (Application no. 37462/09)               JUDGMENT     STRASBOURG     4 October 2016     FINAL   04/01/2017   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Žaja v. Croatia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Işıl Karakaş, President,   Julia Laffranque,   Nebojša Vučinić,   Valeriu Griţco,   Ksenija Turković,   Jon Fridrik Kjølbro,   Georges Ravarani, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 6 September 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 37462/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Miljenko Žaja (“the applicant”), on 5 May 2009. 2.     The applicant was represented by Mr P. Krnić, an advocate practising in Slavonski Brod. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3.     The applicant complained that, as a result of a wrong interpretation of the relevant law, different from the one adopted by the domestic authorities in other similar cases, he had been convicted of and fined for a customs-related administrative offence even though he had done nothing illegal. 4.     On 24 March 2011 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1958 and lives in Prague. 6.     The applicant claims to have been living in Prague since 18   November 2000, when the Czech authorities granted him a visa for an extended stay (a long-term residence permit). On 18   February 2008 the applicant was granted the right to reside permanently in the Czech Republic (a permanent residence permit). However, he did not de-register his domicile ( prebivalište ) in Croatia. 7.     On 5 June 2008 the applicant bought a car (a Mercedes S 350 L) in Germany and on 10 June 2008 he registered it in the Czech Republic in his name. 8.     On 11 June 2008 the applicant entered Croatia in his car. He claimed that the purpose of his visit was, inter alia , to de-register his domicile in Croatia. 9.     On 15 June 2008 the applicant was stopped by the police in Zagreb while driving his car. The police authorities, finding it suspicious that a Croatian national was driving a car with foreign licence plates, impounded the car and reported the matter to the Customs Administration, suspecting that the car had been imported into Croatia without payment of the relevant taxes and that an administrative offence had thus been committed. 10.     On 17 June 2008 the applicant de-registered his domicile in Croatia. 11. On 15 September 2008 the applicant re-registered his domicile in Croatia. A.     The administrative proceedings 1.     Principal proceedings 12.     Meanwhile, on 16 June 2008 the Customs Administration of the Ministry of Finance had instituted administrative proceedings ( upravni postupak ) with a view to establishing whether the applicant was liable to pay taxes on the importation of his vehicle and if so, in what amount. On the same day the Customs Administration had issued a decision impounding the applicant’s car, against which the applicant did not appeal. 13.     On 11 December 2008 the Customs Administration issued a decision ordering the applicant to pay, by 30 December 2008, the customs debt (consisting of the VAT and the special tax on motor vehicles) owed on the importation of his car, which amounted to 527,747.08 Croatian kunas (HRK). [1] 14.     The applicant did not appeal against that decision, which thus became final and enforceable on 3 January 2009. 2.     Administrative enforcement proceedings 15.     Since the applicant did not pay the above sum, on 23 February 2009 the Customs Administration instituted administrative enforcement proceedings and issued a decision confiscating his car and ordering its sale with a view to collecting the above-mentioned customs debt. 16.     By a decision of 5 June 2009 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision of 23 February 2009. 17.     On 6 October 2009 the applicant brought an action in the Administrative Court ( Upravni sud Republike Hrvatske ). 18.     On 9 May 2012 that court, which in the meantime had become the High Administrative Court ( Visoki upravni sud Republike Hrvatske ), dismissed the applicant’s action. B.     The administrative offence proceedings 19.     In the meantime, on 17 July 2008 the Customs Administration had also instituted administrative offence proceedings ( prekršajni postupak ) against the applicant for importing his car into Croatia without paying the relevant taxes. 20.     On 31 July 2008 the Customs Administration found the applicant guilty of committing an administrative offence under section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 below), and fined him HRK   5,000 [2] . The Customs Administration found that the applicant had had his domicile in Croatia at the time of the commission of the offence. Therefore, it was irrelevant that he did not pay income tax in Croatia, that he had health insurance in the Czech Republic and not in Croatia, and that he had been granted the right to reside permanently in the Czech Republic. By having his domicile in Croatia he failed to satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Convention on Temporary Admission (“the Istanbul Convention”), which stated that the registered owner of a vehicle registered abroad must, in order to qualify for exemption, have his domicile outside the territory of the State into which the vehicle was being brought (see paragraph 45 below). 21.     On 8 September 2008 the High Court for Administrative Offences ( Visoki prekršajni sud Republike Hrvatske ) quashed the first-instance decision on account of incomplete facts, and remitted the case to the Customs Administration. The relevant part of that decision reads as follows: “[The Customs Administration] states, as the decisive reason for its decision to find the accused guilty, that [he] has his domicile in ... Croatia, at [an] address in Zagreb, ..., and that the fact that he possesses a residence permit, that is, a valid visa, of the Czech Republic, is not sufficient evidence for the accused to be entitled to import [his] vehicle with total exemption from customs duties under the Convention on Temporary Admission. However, it is precisely such explanation of the contested decision that, along with the other elements in the case file, shows that the taking of evidence was flawed, that [the Customs Administration] did not give [sufficient] reasons for the decisive facts on which it based its decision, and that they [that is, those facts and the reasons given] are in strong contradiction with each other. [In particular, the Customs Administration] while acknowledging the fact that [the accused] possesses a residence permit, that is, a visa, of the Czech Republic, further gives as reasons [to support the finding] that the accused has a domicile in ... Croatia, that he is not a taxpayer in ... Croatia, and that he is not even insured with the Croatian Health Insurance Fund. .... ... [D]uring the first-instance proceedings [before the Customs Administration] the accused stated circumstances and furnished evidence which, in his view, suggested that he had not committed the offence of which he was accused. [The Customs Administration therefore] needed to examine the evidence more thoroughly with a view to establishing the [relevant] facts completely and correctly. ... This court considers that what is missing in the present case are the reasons for not accepting the status of the accused in the Czech Republic, the explanation of where the accused actually lives [resides] and, consequently, a clear conclusion as to whether or not he satisfied the conditions set out in Article 5 of Annex C of the Convention on Temporary Admission ....” 22.     In the resumed proceedings, by a decision of 9 October 2008 the Customs Administration again found the applicant guilty of committing the same administrative offence and fined him HRK 5,000. The Customs Administration again found that at the time of the commission of the offence the applicant had had his domicile in Croatia according to the Domicile and Residence of Citizens Act (see paragraph 32 below) and thus did not satisfy the conditions for exemption from payment of customs duties set forth in Article   5 of Annex C to the Istanbul Convention (see   paragraph   45 below). Therefore, the fact that the applicant resided in the Czech Republic was of no relevance as he had not proved that he had his domicile there. The relevant part of that decision reads as follows: “After having examined the evidence ..., this authority finds that the accused, Miljenko Žaja, committed the customs-related administrative offence he was charged with, defined in section 241(1) subparagraph 10 of the Customs Act. Section 241(1) subparagraph 10 [of the Customs Act] provides that a fine for an administrative offence is to be imposed on a person who treats goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for the temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention. In the proceedings it was established beyond doubt that on 15 June 2008 the accused was found operating the vehicle in question with foreign licence plates of the Czech Republic on the territory of Croatia as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention because he was a Croatian national who at the time of the commission of the offence had his domicile in Croatia. The rights and obligations of participants in customs proceedings and the powers of the customs authorities as regards means of transport imported by natural persons into Croatian customs territory are regulated by the provisions of the [Istanbul] Convention. Likewise, customs proceedings and supervision of means of transport with foreign licence plates in the Croatian customs territory is regulated by the provisions of the Customs Act and the Decree on the implementation of the Customs Act. It is established beyond dispute that the accused is a Croatian national who at the time of ... the offence had his domicile in ... Croatia. His defence that he had a registered residence in the Czech Republic was not accepted as a ground for exemption from liability ... Namely, the mere fact that he possesses a residence permit is not a proof that would entitle him to import [his] car with total relief from payment of customs duties under the Convention on Temporary Admission because he does not have his domicile abroad. This is so because the procedure for temporary admission of private means of transport is regulated by Article 5 of Annex C to the [Istanbul] Convention in such a way that means of transport for private use must be registered in a territory other than that of temporary admission in the name of a person having a seat or domicile outside the territory of temporary admission and be imported and used by persons residing in that territory. As regards his personal status, it has been established beyond doubt that the accused is a Croatian national, and that until 17 May 2008 he had [his] domicile in Croatia, in Zagreb. Furthermore, after the accused was reported as having committed the administrative offence, he de-registered his domicile in Zagreb – in this authority’s view – merely to avoid liability for the offence. At the time of the commission of the offence the accused did not satisfy the conditions for temporary importation with total relief and [was thus not entitled to] operate a vehicle with foreign licence plates. Namely, [Article 5 of] Annex C to the [Istanbul] Convention expressly provides that the right to temporary importation belongs to persons who have domicile outside the territory of temporary admission, that is, outside Croatia. This authority has examined the argument of the accused that he is not a taxpayer in Croatia, which is evident from the certificate of 23   June 2008 issued by the Tax Administration, as well as the evidence [to the effect] that he is neither insured with the Croatian Health Insurance Fund nor has social security [cover] in Croatia. However, that evidence cannot lead to the adoption of a different decision, because the fact of [having or not] health insurance or social security is not evidence of domicile abroad. This authority has also taken into account the fact that the accused had health insurance in the Czech Republic as of 3 October 2007. However, having [health] insurance is itself not relevant for the adoption of a different decision because the fact of [possessing] insurance, which according to the accused’s own statement is voluntary, does not give [him] the right to temporary admission of the vehicle in question with total relief. On the basis of these findings of fact, and in accordance with the foregoing provisions, this authority has established beyond doubt that the accused did not satisfy the conditions for temporary admission, and that, by handling the vehicle in question contrary to [those] conditions, he committed the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act. This authority has [also] examined the argument of the accused that he is registered in the Czech Republic [as an alien] for an extended stay, of which he submitted evidence [in the form of] a certificate [issued] by the Police of the Czech Republic. However, that evidence does not prove his domicile abroad, but only his stay. What is more, at the hearing held on 30 September 2008 the accused himself stated only the fact of his residence in the Czech Republic, which confirms that at the time of the commission of the offence he did not satisfy the conditions for the temporary admission of vehicles with total relief, in accordance with Annex C to the [Istanbul] Convention. In particular, it is beyond doubt that at the time of the commission of the offence the accused had his domicile in Croatia. Section 2 of the Domicile and Residence of Citizens Act provides that a citizen’s domicile is the place where he has settled with the intention of permanently living there, and in which he has permanent accommodation secured. The solemn statement of the commercial company [ERC] of 13 August 2008 stating that it would provide accommodation for Miljenko Žaja as of 1 January 2008 was also examined in the proceedings. However, [that statement] is not decisive for exempting [the accused] from liability because it was issued after this authority adopted its [first] decision of 31 July 2008 and because the statement in question does not give him the right to temporary admission with total relief. The statement given by P.Ć. (before a notary public on 22 September 2008), which was also examined during the proceedings, is illogical and contrary to [both] the statement of Miljenko Žaja and the solemn statement of 13 August 2008 in that it suggests that the flat [in Prague in which the applicant claimed to be living] was rented to P.Ć., and not to the accused, whereas the solemn statement of ERC of 13   August 2008 suggested that it provided Miljenko Žaja with accommodation at the address [in Prague]. After examining that evidence, this authority considers that it was obtained with a view to proving that the accused had rented accommodation to live in abroad. Moreover, the evidence of the accused that his wife is a director of company PZM in Prague is not relevant either, because in his statement of 22 July 2008 he stated that his wife lived in Zagreb and had her business in Croatia. This authority does not dispute the fact that the accused is disabled, with a degree of disability of 100%, of which he submitted as evidence a membership card [issued by an association of disabled persons] in his name indicating his domicile [as being] in Zagreb ... In the proceedings all the evidence furnished by the accused was examined. However, by that evidence the accused did not prove that he had been living abroad. From all the evidence it is apparent that at the time of the commission of the offence the accused was a Croatian national who had his domicile in Croatia, with all the rights and obligations attached to that. The accused could not pose in Croatia as a person having domicile abroad and enjoy the rights of [such] a person in [his own] country, where until 17 June 2008 he had his domicile. Therefore, the accused did not satisfy the conditions for the temporary admission of a foreign car to the territory of the Republic of Croatia with total relief under Annex C [to the Istanbul Convention] and the Decree on the implementation of the Customs Act because his domicile was in Croatia at the time of the commission of the offence. In the light of the foregoing, this authority has adopted a decision finding the accused guilty, as stated in the operative provisions.” 23.     By a decision of 29 October 2008 the High Court for Administrative Offences dismissed an appeal by the applicant and upheld the first-instance decision, endorsing the reasons given therein. The relevant part of that decision reads as follows: “Against the first-instance decision the accused ... lodged ... an appeal on the grounds of breaches of procedure, incomplete and incorrect findings of fact, misapplication of the substantive law, and a wrong decision on the sanction. In the appeal the accused essentially argues ... that he has proved that at the time of entry into the Republic of Croatia he satisfied all statutory requirements for legally entering [Croatia] with the car in question, that the first-instance authority called into question the validity of the visa of the Czech Republic, where he was [first] granted an extended stay, and from 18 February 2008 the right to reside permanently, [and] that he uses the flat in Prague without restrictions. He therefore considers that there are no legal grounds or evidence for a finding that he committed the administrative offence in question. ... The appeal is unfounded. ... The accused unjustifiably denies liability for the administrative offence committed, because the first-instance authority[,] ... on the basis of his statement given at the hearing of 30 September 2008 and ... the written evidence[,] ... correctly concluded that his conduct had all the elements of the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act. [The accused] was on 15 June 2008 in Zagreb found operating a Mercedes Benz vehicle ... with foreign licence plates of the Czech Republic as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods given that at the time of the commission of the offence he had his domicile in Croatia. Since that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act and the [Istanbul] Convention, he committed the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act. ... The other appellate arguments are also unfounded because the ... Customs Administration ... correctly and accurately established the [relevant] facts ... and correctly applied the substantive law... In particular, special conditions for the temporary importation of means of transport are prescribed in Article 5 of Annex C to the Convention on Temporary Admission in Chapter III, where subparagraph (b) provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory. The Domicile and Residence of Citizens Act in its section 2 provides that domicile is the place where a citizen has settled with the intention of permanently living there. Therefore, given that during the [first-instance] proceedings the decisive fact that the accused is a Croatian national who at the time of the commission of the offence had his domicile in the territory of the Republic of Croatia was established beyond doubt, he did not satisfy the conditions for temporary admission of a foreign car to the territory of the Republic of Croatia set out in the above-cited provisions of the Annex to the Convention on Temporary Admission. [This court] therefore upholds as correct in its entirety the decision of the first-instance authority ... whereby the accused was found guilty and sanctioned for the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act ...” 24.     The applicant then, on 12 November 2008, lodged a constitutional complaint against the second-instance decision, alleging violations of his constitutional rights to fair proceedings, equality before the law and equality before the courts and other public authorities. In so doing he relied on Article 14 paragraph 2 , Article 26 and Article 29 paragraph 1 of the Croatian Constitution (see paragraph 26 below). He argued that the High Court for Administrative Offences had misinterpreted the text of Article 5 of Annex C to the Istanbul Convention, which in the official text did not refer to “domicile” but to “living” abroad. Therefore, the fact that while living in Prague he had kept his domicile in Croatia was not relevant. The applicant further argued that the meaning given to certain legal terms in domestic legislation could not be relied on in interpreting the same or similar terms used in international agreements. In particular, the applicant argued as follows: “In the decision [of 29 October 2008] the High Court for Administrative Offences totally wrongly quoted the text of Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission by stating [that it] ‘provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory’ [emphasis added]. However, the text Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission published in the Official Gazette [– International agreements] no. 16/98 is completely different and reads: ‘... means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons living in such a territory’ [emphasis added]. The obvious difference between [the two texts] is that the High Court for Administrative Offences refers to [having] domicile in the territory of another State as a condition for using a foreign car whereas the text of the Convention [on Temporary Admission] ... refers to ... living in the territory of another State, which is legally not the same. Besides, the fact of living in the territory of another State, that is, in the State from which the disputed car originates, cannot be assessed in accordance with Croatian laws, and especially not in the way [the High Court for Administrative Offences] did it, but in accordance with the Convention [on Temporary Admission] itself and the Decree on the implementation of the Customs Act, .... [T]hat fact of living in the territory of another State is to be proved by work or residence permit. ... all customs offices in Croatia have, upon a citizen’s entry into [Croatia] by car, been establishing the fact of living in another State by checking only work or residence permit. It is evident that in the instant case [the authorities] departed from the relevant law and the established practice ... by deliberately misquoting the relevant provisions with a view to creating conditions for the complainant’s conviction at all costs. ... [T]he complainant proved beyond doubt, by presenting a valid visa for an extended stay, the contract on the use of a flat and a social security certificate, that he has de jure and de facto been living in the Czech Republic, and that he had legally bought the car in accordance with the Czech laws. [It follows that] the complainant perfectly legally entered Croatia in accordance with Article 5 subparagraph (b) ... of [Annex C to] the Convention on Temporary Admission, and that by so doing he did not commit a customs offence defined in section 241(1) subparagraph 10 of the Customs Act. In any event, the customs office [in question] would not have allowed the complainant to enter the territory of Croatia if he did not satisfy the said conditions. It is totally unclear why the complainant should, as stated in the first-instance decision, pay any customs debt [in the situation] where he did not ask for customs clearance but only temporary admission. If the customs authorities considered that temporary admission was not allowed then they could have ordered that the car be exported from Croatia ... at the expense of the complainant. The above described proceedings are certainly a chicanery for the reasons as stated and at the same time constitute a dangerous precedent for all other citizens of Croatia ... If such proceedings would apply to all Croatian nationals operating cars with foreign licence plates, only a few [such] cars daily could enter Croatia. Besides, if that view of the lower judicial and other authorities on the [interpretation of the relevant] substantive law is to be accepted, not a single one of hundreds of thousands of Croatian citizens temporarily working in Germany, Italy or Switzerland could enter Croatia because they all legally have domicile in Croatia. [In this way] several thousands of cars should be confiscated every year, especially from citizens of Bosnia and Herzegovina having double nationality who enter Croatia on a daily basis. In particular, the [contested] decisions infringed the right to impartial and fair proceedings guaranteed by Article 29 of the Croatian Constitution because for the reasons set out above those decisions are certainly neither fair nor impartial. On the contrary, they are absolutely biased and blatantly unfair. The decision to prosecute only the complainant and not hundreds of thousands of others certainly constitutes a violation of Article 14 paragraph 2 of the Constitution whereby equality before the law is guaranteed to the complainant, and also of Article   26 of the Constitution which guarantees equality of all Croatian citizens before courts and other State authorities.” 25.     By a decision of 8 April 2009 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant’s constitutional complaint, finding that the contested decisions were based on a “constitutionally acceptable interpretation and application of the relevant substantive law”. The Constitutional Court’s decision was served on the applicant’s representative on 22 April 2009. It reads as follows: “5. According to section 241(1) subparagraph 10 of the Customs Act a ... natural person shall be liable for an administrative offence if he or she handles [the] goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the Convention on Temporary Admission, Convention on Temporary Admission, Annex C, Article 5 subparagraph (b) provides as follows: (b) means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and be imported and used by persons living in such a territory . Having regard to the cited provisions of the Customs Act and Article 5 subparagraph (b) of the Annex C to the Convention on Temporary Admission, as well as the facts established in the proceedings ... (in particular the fact that it was established ... that at the time of the commission of the offence the complainant had registered domicile in Croatia in accordance with the relevant provisions of the Domicile and Residence of Citizens Act), the Constitutional Court finds that the legal views expressed in the contested decisions are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court considers that the relevant administrative authority and the High Court for Administrative Offences, relying on the facts established in the proceedings, gave reasons for their views expressed in the contested decisions, which undoubtedly do not result from an arbitrary interpretation and application of the relevant substantive law. The Constitutional Court therefore finds that the complainant’s right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution was not violated by the contested decisions. 6. Article 29 paragraph 1 of the Constitution provides as follows: Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his rights or obligations, or as regards suspicion or accusation of a criminal offence . [In the present case] the administrative and judicial authorities acted within their jurisdiction established by law. It is evident from the case-file that the first-instance administrative authority took evidence in accordance with the Administrative Offences Act and that the High Court for Administrative Offences decided on the complainant’s appeal on the merits. It is also evident that the complainant had an opportunity to follow and participate in the proceedings, and that he could undertake all permitted procedural actions and lodge a remedy. The contested decisions are sufficiently reasoned and adopted in accordance with the relevant procedural rules. For these reasons, the [Constitutional] Court finds that the contested decisions did not violate the complainant’s constitutional right to fair proceedings. As regards the complainant’s argument that in similar cases the relevant authorities proceed differently, that in itself does not mean that the complainant’s constitutional right was violated by the contested decisions. In the [Constitutional] Court’s view, in the proceedings [complained of] the contested decisions were adopted in accordance with the relevant legislation. [T]herefore the fact that different decisions may have been adopted in other proceedings is of no relevance for the lawfulness of the decisions contested before the Constitutional Court in these proceedings, nor can it lead to a different decision in this particular case. 7. Article 26 of the Constitution ... is not relevant in this case.” II.     RELEVANT CROATIAN LAW AND PRACTICE A.     The Constitution 26.     The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske , Official Gazette no. 56/90 with subsequent amendments) provides as follows: Article 14(2) “Everyone shall be equal before the law.” Article 26 “Every citizen of the Republic of Croatia and [every] foreigner shall be equal before the courts and other State or public authorities.” Article 29(1) “Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his rights or obligations, or as regards suspicion or accusation of a criminal offence.” Article 31(1) “No one shall be punished for an act which, before it was committed, was not defined as a criminal offence by a statute or international law ...” Article 134 “International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...” B.     The Constitutional Court Act 1.     Relevant provisions 27.     The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia ( Ustavni zakon o Ustavnom sudu Republike Hrvatske , Official Gazette no. 99/99) – “the Constitutional Court Act”), as amended by the 2002 Amendments ( Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske , Official Gazette no. 29/02), which entered into force on 15   March 2002, reads as follows: Section 62 “1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”) ... 2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [ revizija ] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.” Section 65(1) “A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated, [together] with an indication of the relevant provision of the Constitution guaranteeing that right ...” Section 71(1) “ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.” 2.     The Constitutional Court’s case-law 28.     On 9 July 2001 the Constitutional Court delivered decision no.   U ‑ III-368/1999 (Official Gazette no. 65/01) in a case where the complainant relied in her constitutional complaint on Articles 3 and 19   paragraph 1 of the Constitution, neither of which, under that court’s case-law, concerned a constitutional right. The Constitutional Court nevertheless allowed the constitutional complaint, finding violations of Articles   14,   19   paragraph   2 and 26 of the Constitution, on which the complainant had not relied, and quashed the contested decisions. In so deciding it held as follows: “... a constitutional complaint cannot be based on either of the constitutional provisions relied on [by the complainant in her constitutional complaint]. However, the present case, as will be explained further, concerns a specific legal situation as a result of which this court, despite [its] finding that there have not been, and cannot be, any violations of the constitutional rights explicitly relied on by the complainant, considers that there are circumstances which warrant the quashing of [the contested] decisions. ... Namely, it is evident from the constitutional complaint and the case file that there have been violations of [constitutional] rights, in particular those guaranteed by Article 14 (equality, equality before the law), Article 19 paragraph 2 (guarantee of judicial review of decisions of state and other public authorities) and Article 26 (equality before the courts and other state or public authorities) of the Constitution ...” C.     The Customs Act 1.     Relevant provisions 29.     The relevant provisions of the Customs Act ( Carinski zakon , Official Gazette, no. 78/99 with subsequent amendments), which was in force between 1 January 2000 and 30   June 2013, at the material time read as follows: Section 4(1) “For the purposes of this Act certain terms have the following meaning: 1. ... 2. persons having domicile – seat in the customs territory are: - Natural persons having domicile or habitual residence in the customs territory, ...”   Section 241(1) “ A fine ... of between 1,000 and 100,000 kunas for an administrative offence shall be imposed on ... a natural person: ... 10. if he or she handles [the] goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for temporary admission of goods set forth in this Act or in the Convention on Temporary Admission, ...” 2.     Relevant subordinate legislation 30.     The Decree on the implementation of the Customs Act ( Uredba za provedbu Carinskog zakona , Official Gazette, no. 161/03 with subsequent amendments), which was in force between 1 November 2003 and 30 June 2013, at the material time read as follows: Chapter 5 Temporary Importation Division 2 Conditions for Granting Temporary Importation with Total Relief Subdivision 1 Road vehicles Section 265(1) “Total relief [from customs duties] shall be granted for road vehicles ... in the following cases: (a)     if they are registered outside the customs territory of the Republic of Croatia and in the name of a person outside [that territory]; in the event that [they] are not registered, these conditions shall be considered satisfied if they are owned by a person having seat outside the customs territory of the Republic of Croatia, b) if they are used by persons having seat outside the customs territory of the Republic of Croatia ...” ... Section 269 “Without prejudice to the application of any special provisions, the time-limit for the completion of the temporary importation is ... for road vehicles for private use ... six months within a twelve-month period.” D.     The General Tax Act 31.     The relevant part of the General Tax Act ( Opći porezni zakon , Official Gazette, nos. 127/02 and 150/02), which was in force between 1   January 2001 and 31 December 2008, provided as follows: I.     BASIC PROVISIONS General provision Section 1 “This Act regulates the relationship between taxpayers and the tax authorities which apply legislation on taxes and other levies, unless otherwise provided in special legislation concerning particular types of taxes or other levies, and represents the common basis of the tax system.” Forms of levies Section 2(1) and (3) “(1)     Levies within the meaning of this Act are: taxes, customs duties, [public] fees and contributions. ... (3)     Customs duties are taxes paid on imports.” ... IV.     TAX LIABILITY RELATIONSHIP 4.     Taxpayer’s abode [Fiscal] Domicile and habitual residence Section 37 “(1)     For the purposes of this Act it shall be considered that the taxpayer has [fiscal] domicile [ prebivalište ] [in a place] where he or she owns or possesses a home [ stan ] continuously for [a period of] at least 183 days in one or two calendar years. Actual presence in the home is not required.   (2)     If the taxpayer owns or possesses more than one home his [fiscal] domicile shall be in the place where his or her family has domicile, and for the taxpayer who is single, the place where he or she predominantly stays, or the place from which he or she predominantly sets off to work or to exercise other [professional] activity. (3)     If the taxpayer has [fiscal] domicile both in Croatia and abroad, he or she shall be considered a domestic taxpayer. (4)     A taxpayer shall have his or her habitual residence [ uobičajeno boravište ] within the meaning of this Act in a place in which he or she is staying under circumstances from which it may be concluded that he or she does not reside in that place or that territory only temporarily. Permanent residence or intermittent residence lasting at least 183 days in one or two calendar years shall be considered habitual residence for the purposes of this Act. Short periods of absence lasting no longer than one year shall not be relevant for the determination of habitual residence.” E.     The Domicile and Residence of Citizens Act 1.     Relevant provisions 32.     The relevant provisions of the Domicile and Residence of Citizens Act ( Zakon o prebivalištu i boravištu građana , Official Gazette no.   53/1991), which was in force between 8 October 1991 and 29 December 2012, read as follows: Section 1 “Every Croatian citizen present on the territory of the Republic of Croatia has domicile in the Republic of Croatia, and may also have residence.” Section 2 “A citizen’s domicile [ prebivalište ] is the place where he or she has settled with the intention of permanently living there.” ... Section 5 “A citizen’s residence [ boravište ] may be habitual or temporary. A habitual residence [ uobičajeno boravište ] is a place in which a citizen resides permanently without the intention of settling there. A temporary residence [ privremeno boravište ] is a place in which a citizen stays up to thirty days.” Section 6(1) “Citizens have a duty to register and de-register domicile, habitual residence and any change of address.” Section 16 “(1)     A fine of between [10 and 25 euros] in kuna equivalent for an administrative offence shall be imposed on: - those who do not register or de-register their domicile or change of address or do not report residence or do not do so within the prescribed time-limit (section 6 paragraph 1, ...); - those who give false or incorrect information when registering their domicile, residence or change of address (...).” 2.     Relevant case-law and the position of legal scholars 33.     It has generally been accepted among Croatian legal scholars that domicile has two elements: (a) the objective element ( corpus ), that is, the fact that an individual has settled (established, set up a home) in a particular place, and (b) the subjective element, that is, the intention (the will) of permanently living there ( animus semper manendi ). However, once established, domicile is not lost by the mere loss of one of its constituent elements. For example, a person who is (temporarily) absent from the town where he or she has established his or her domicile will not lose that status if he or she wishes to live there permanently, that is, as long as he or she intends to return to it. Likewise, a person who has established his or her domicile in a particular town but no longer intends to (permanently) live there will not lose his or her domicile in that town while he or she still lives there, that is, as long as he or she does not actually move elsewhere. 34.     Thus Croatian nationals who temporarily work and live abroad are considered to have retained their domicile in Croatia (see, for example, Supreme Court cases nos. Gž-4608/75 and Rev-325/81). For example, in case no. Us-8015/2002 of 23 November 2006 the Administrative Court quashed the decision of the Ministry of the Interior to de-register of its own motion the domicile of a Croatian national who had left Croatia for employment in a foreign country. It ruled that there was no legal basis for such a decision in the Domicile and Residence of Citizens Act as the plaintiff had left Croatia only temporarily, without the intention of permanently remaining abroad. The relevant part of that judgment reads as follows: “From the provisions [of the Domicile and Residence of Citizens Act] ... it follows that every Croatian national present in the territory of the Republic of Croatia has a guaranteed domicile in the Republic of Croatia and that Croatian nationals freely decide which place in [its] territory ... to choose as their domicile. In so doing what is decisive is the will of the citizens themselves, because only the place where a citizen has settled with the intention of permanently living there may be regarded as his or her domicile... The case file ... suggests that the plaintiff, her husband and her children had ... their registered domicile in the Republic of Croatia in the town of H. ... and that they had all gone together, for reasons of the husband’s employment, to live temporarily in ... Bosnia and Herzegovina, without the intention of staying there permanently. Furthermore, [the case file] also suggests that the plaintiff’s husband is, together with his father, the co-owner of a house in H., while in ... Bosnia and Herzegovina they do not own any immovable property.” 35.     In that case the Administrative Court particularly emphasised that the Domicile and Residence of Citizens Act did not provide how long a person could be absent from the place of his or her domicile for the absence to have legal consequences. For the same reason, in its judgment no. Rev-87/1996-2 of 14   February 1996 the Supreme Court was able to rule, though in the context of housing legislation, that the defendant’s (a Croatian national) absence from Croatia for reasons of employment, which had lasted six years during which he and his family lived in Canada, obtained Canadian na