CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juillet 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s29100277 { font-family:Arial; font-weight:bold } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .sBD1BE8CC { width:33.89pt; display:inline-block } .s827CB718 { width:157.45pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 43100/16 Eduard Igorovych ALEKSANDROV against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 4 July 2024 as a Committee composed of:   Mārtiņš Mits , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   43100/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 July 2016 by a Russian national, Mr Eduard Igorovych Aleksandrov (“the applicant”), who was born in 1964, lives in Mykolayiv and was represented by Mr V. Polyanovskyy, a lawyer practising in Kyiv; the decision to give notice of the complaint under Article 1 of Protocol   No.   1 to the Convention to the Ukrainian Government (“the Government”), represented by their then acting Agent, Mrs Irena Koval, and to declare the remainder of the application inadmissible; the decision by the Russian Government not to exercise   their right to intervene in the proceedings; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the alleged violation of the applicant’s right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 to the Convention because of the sanction imposed on him in administrative offence proceedings. 2 .     On 22 December 2015 the Central District Court of Mykolayiv found the applicant, the assistant captain of a tugboat, liable for failing to declare to the customs authorities as "goods" 98 tonnes of fuel in the boat’s tank and a hank of rope, both acquired in international waters. It 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. As the fuel had already been consumed at the time of the decision and therefore could not be confiscated in kind, the court, relying on Articles 541 and 542 of the Customs Code, ordered the applicant to pay the value of the fuel (UAH   1,255,865; approximately EUR 42,300 at the time). By the final judgment of 15 February 2016, the Mykolaiv Regional Court of Appeal ("the Court of Appeal") upheld this decision on appeal. 3 .     In September 2016 the applicant instituted court proceedings against the customs authorities seeking to declare their failure to seize the fuel pending the above-mentioned administrative offence proceedings unlawful. On 16 September 2016 the Odesa District Administrative Court allowed the applicant’s claim. It found, inter alia , that the customs authorities had not shown that they had taken any steps to comply with their obligation under Article 255 of the Customs Code to seize the fuel in due time. The court found that their failure to do so resulted in a violation of the applicant’s rights, since he had to bear significant financial consequences in the form of an obligation to pay 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. 4.     In March 2016 the State Bailiffs’ Service which was the only authority entrusted by domestic law with the enforcement of judgments given in favour of the State (Article 5 of the Law on Enforcement Proceedings) received the writs of execution from the customs office in respect of the fine and the fuel value to be collected from the applicant and commenced the enforcement proceedings.   In April 2016 a bailiff dealing with the applicant’s enforcement case issued a decision to attach the applicant’s properties. 5 .     On 23 March 2020 the bailiff decided, pursuant to Article 37(1) of the Law on Enforcement Proceedings, to return the writs of execution to the relevant state body because the applicant had no funds or property in Ukraine which could be subjected to seizure to enforce the judgment of 22 December 2015. It was noted that he had no bank accounts or other registered income in Ukraine and that his house – the only value which he possessed – was mortgaged to a bank and could therefore not be seized in the enforcement proceedings. The relevant decisions also indicated that the writs of execution could be re-submitted for enforcement by 23 June 2020, that is within the three-month’s time-limits provided for by Article 12 of the Law on Enforcement Proceedings (see paragraph 14 below). Apparently, the writs of execution were not resubmitted by the customs authorities for enforcement, and the applicant had never paid   the amounts ordered by the domestic courts. 6.     Relying on Article 1 of Protocol No. 1, the applicant complained that the sanction imposed on him in the administrative offence proceedings was unlawful, since he had not committed any offence, and, in any event, excessive. THE COURT’S ASSESSMENT 7.     The Government argued that the applicant had failed to exhaust the available domestic remedies in respect of the fuel value because he had not claimed compensation for damage from the customs authorities, as authorised under Articles 1173 and 1174 of the Civil Code, for their unlawful failure, established by the final judgment of the Odesa District Administrative Court of 16 September 2016, to duly seize the fuel (see paragraph 3 above). 8.     They further submitted that the sanction had been lawfully imposed and the amounts the applicant had been ordered to pay had not been disproportionately high. Moreover, the applicant had never made any payment under the judgment of 22 December 2015. 9.     The applicant was of the view that the remedy referred to by the Government was irrelevant, as it would not invalidate the judgment of 22   December 2015. 10.     He further submitted that the fact that he had never paid the sums ordered by this judgment was a technical matter which did not render the contested judgment invalid. 11.     The Court takes note of the Government’s objection of non ‑ exhaustion of domestic remedies (see paragraph 31 above). However, in view of its conclusion below to strike out the application out of its list of cases, the Court finds that it is not necessary to examine the objection. 12.     As mentioned above, by the judgment of the District Court of 22   December 2015, which was upheld by the Court of Appeal, the applicant was ordered to pay a total amount of approximately EUR 86,300 (see paragraph 2 above). 13.     In March 2016 the customs office obtained the writs of execution and initiated enforcement proceedings against the applicant. It appears that the only action aimed at obtaining payment from the applicant was the bailiff’s 2016 decision to attach the applicant’s properties. However, this measure appeared to be ineffective and placed no restriction on the applicant since the applicant’s only property in Ukraine was his house, which could not be seized by the bailiff in the enforcement proceedings (see paragraph 5 above). It was for this reason that in 2020 the writs of execution were returned to the customs office noting that it appeared impossible to collect the sums ordered by the domestic court (ibid.). It has not been suggested by the applicant that any further enforcement attempts were undertaken subsequently. 14 .     The Court observes that, under Article 12 §§ 1 and 2 of the Law on Enforcement Proceedings, the statutory limitation period for the submission for enforcement of a writ of execution in respect of which the State body is the creditor is three months, calculated from the day following the entry into force of the relevant judgment of the court. This period is interrupted as soon as the writ is presented for enforcement (Article 12 § 4). If the writ is returned because it is impossible to enforce the judgment in whole or in part, a fresh limitation period begins to run on the day following that on which the writ was returned (Article 12 § 5 and Article 37 § 5). Any application for enforcement lodged by the creditor outside the three-month time-limit must be duly substantiated and submitted for examination to the court of first instance which delivered the judgment in question (Article 12 § 6). The court’s decision to renew the missed time-limit for submission of the writ of execution to the bailiffs can be appealed to the higher court (Article 353 § 24 of the Code of Civil Procedure). 15.     Accordingly, the three-month limitation period for claiming the enforcement of the judgment of 22 December 2015 must have started running on 17 February 2016. It was interrupted in March 2016, when the enforcement proceedings were commenced, and started running again on 24   March 2020, one day after the writs of execution had been returned by the bailiffs to the customs office due to the applicant’s lack of funds. The limitation period came to an end on 24 June 2020, with no request for enforcement being lodged by the customs office before that date or ever after. In any event, after the latter date, the enforcement of the judgment of 22   December 2015 had become time-barred pursuant to domestic law. 16.     It is thus clear from the information in the case file that the applicant had never made any payment under the judgment of 15 December 2015 and that his obligation to pay in the enforcement proceedings became time-barred pursuant to domestic law. Where the authorities seek to enforce the writ of execution after the expiry of the limitation period, for which the Court sees no valid justification years after the writs have been returned, the domestic law provides the applicant with a remedy enabling him to contest such measures (see paragraph 14 above). 17.     In these circumstances, and in the absence of any evidence suggesting that the applicant had to suffer any other restriction related to the fine and the value of fuel he had been due to pay, the Court considers that it is no longer justified to continue the examination of the application within the meaning of Article 37 § 1 (c) of the Convention (see and compare Kirov and Others v.   Bulgaria   (dec.), no.   57214/09, §§ 37-48, 9 January 2018). No particular reason relating to respect for human rights as defined in the Convention and the Protocols thereto requires the Court to continue its examination of the application under Article 37 §   1   in fine . 18.     The Court would also reiterate that after it has struck an application out of its list of cases it can at any time decide to restore it to the list if it considers that the circumstances justify such a course, in accordance with Article 37 § 2 of the Convention (see   Khan v. Germany   [GC], no.   38030/12, § 41, 21 September 2016). 19.     Consequently, the application should be struck out of the Court’s list of cases. For these reasons, the Court, unanimously, Declares to strike the application out of its list of cases. Done in English and notified in writing on 29 August 2024.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President