Last Updated on October 2, 2020 by LawEuro
FIFTH SECTION
DECISION
Application no. 37454/12
Khamzat Kurbanovich VEGIYEV and Stanislav Kirillovich VEGIYEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 8 September 2020 as a Committee composed of:
Mārtiņš Mits, President,
Latif Hüseynov,
Mattias Guyomar, judges,
Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 14 June 2012,
Having deliberated, decides as follows:
THE FACTS
1. The first applicant, Mr Khamzat Kurbanovich Vegiyev, is a Russian national currently residing in Kharkiv (Ukraine). The second applicant, Mr Stanislav Kirillovich Vegiyev, is a Ukrainian national currently residing in Groznyi (Russia).
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 13 February 2006 the first applicant, who lived in Russia at the time, entered Ukraine in his car (a VAZ made in Russia in 1993) to pay a visit to his cousin, the second applicant, who lived in Ukraine at the material time.
4. On 14 February 2006 the traffic police stopped the second applicant for driving the above-mentioned car without its owner being present. According to the applicants, this happened because the first applicant did not feel well and went to a pharmacy and the second applicant, who had stayed in the car, needed to park it elsewhere urgently. The police inspector, however, considered that there could have been a breach of customs rules and informed the customs authorities.
5. On the same day the Kharkiv Customs Office drew up a report stating that the second applicant had breached Article 336 of the Customs Code, under which vehicles brought in under the temporary importation regime could not be passed into third parties’ possession or use (see paragraph 23 below). The vehicle was seized under Article 377 of the Customs Code (see paragraph 24 below).
6. On 17 February 2006 the first applicant applied to the Kharkiv Customs Office for the return of his car. The authority’s reply was that the issue would be decided by a court within the related administrative-offence proceedings.
7. On 13 April 2006 the Kharkiv Kyivskyy District Court (“the Kyivskyy Court”) found the second applicant guilty of a breach of Article 336 of the Customs Code (an administrative offence) and fined him 850 Ukrainian hryvnias (about 130 euros). The court also ruled that the vehicle which had been seized from the second applicant was to be returned to him.
8. On 11 May 2006 the second applicant paid the fine.
9. The first applicant repeatedly applied to the Kharkiv Customs Office for the vehicle’s return. The latter’s consistent reply was that he would be able to recover his car only after the payment of the legally established storage fees.
10. On 16 May 2006 the Kyivskyy Court explained its ruling of 13 April 2006 (see paragraph 7 above) at the second applicant’s request. It stated that the vehicle should be returned to the first applicant.
11. Having failed to reach an agreement as to whether there was a requirement to pay the storage fees, both the first applicant and the Kharkiv Customs Office applied to the Kyivskyy Court for further clarification of the ruling of 16 May 2006.
12. In reply to that request, on 18 September 2006 the Kyivskyy Court specified that the second applicant, who had been found guilty of the administrative offence involving the car, had to pay the storage fees, after which the car should be returned to him.
13. On 30 October 2006 the first applicant brought a civil claim against the Kharkiv Customs Office, arguing that the continued retention of his car was unlawful and that it should be returned to him.
14. On 12 April 2007 the Kyivskyy Court refused to examine that claim on the grounds that it fell to be dealt with by administrative rather than civil courts. On 31 May 2007 the Kharkiv Regional Court of Appeal upheld that ruling.
15. On 21 December 2007 the first applicant brought administrative proceedings against the Kharkiv Customs Office. He argued that, contrary to the ruling of the Kyivskyy Court of 16 May 2006 (see paragraph 10 above), that authority had continued to refuse to return his car to him, referring to the second applicant’s failure to pay the storage fees. The first applicant emphasised that he had not been a party to the administrative-offence proceedings in which the second applicant had been found guilty of a breach of customs rules and that he could not oblige the latter to pay the fees in question. The first applicant therefore argued that the continued retention of his car was in breach of his property rights and that it should be returned to him without delay.
16. On 1 September 2008 the Kharkiv Regional Court of Appeal examined an appeal by the second applicant against the ruling of the Kyivskyy Court of 13 April 2006 (see paragraph 7 above). The timing of that appeal or of its examination is not clear from the material in the case file (the legally established deadline for appealing against the ruling of a first-instance court expired ten days after its pronouncement, and the appellate court had ten days to examine it after the date on which it was lodged). The appellate court quashed the ruling of 13 April 2006 and discontinued the proceedings against the second applicant on the grounds that there was no indication of an administrative offence.
17. On 24 December 2008 the Kharkiv Circuit Administrative Court found against the first applicant (see paragraph 15 above). It observed that the only reason for the Kharkiv Customs Office to refuse to return the car to him was that he had failed to present a duly certified copy of the ruling of 1 September 2008 (see paragraph 16 above). That being so, the Kharkiv Customs Office had itself applied to the Kyivskyy Court for a copy of the ruling in question. On 1 December 2008 it had received the copy and on 2 December 2008 it had contacted the first applicant with a view to arranging for the vehicle’s return to him. Both applicants confirmed at the court hearing that they had been asked to retrieve the vehicle. As regards its retention prior to 1 September 2008, the court held that it had been in compliance with the law.
18. It appears that in December 2008 the Kharkiv Customs Office informed the second applicant that the fine, which he had paid in accordance with the ruling of 13 April 2006, was to be reimbursed to him under Article 296 of the Code on Administrative Offences (see paragraph 29 below). No further details are available in that connection.
19. On 27 January 2009 the Kharkiv Customs Office returned the car to the first applicant. According to him, it was seriously damaged.
20. On 12 October 2009 the Kharkiv Administrative Court of Appeal rejected an appeal by the second applicant against the ruling of 24 December 2008. Like the first-instance court, it held that the applicants had only been prevented from recovering the car in compliance with the legally established rules and that the Kharkiv Customs Office had been acting in accordance with the law.
21. On 14 December 2011 the Higher Administrative Court upheld the lower courts’ decisions.
B. Relevant domestic law
1. Customs Code 2002 (in force at the material time, repealed with effect from 13 March 2012)
22. Article 168 provided, in particular, that goods and vehicles seized under Article 377 of the Customs Code were to be stored at the warehouses of the customs authorities.
23. Article 336 prohibited operations with vehicles which were subject to customs control without a permit from the customs authorities, in particular their transfer into third parties’ possession or use.
24. Article 377 provided for the seizure of goods or vehicles which were the direct object of violations of customs rules.
25. Article 385 specified that expenses in a case regarding a breach of customs rules were to be borne by the person found to be liable.
2. Customs Service Order no. 835 of 5 December 2003 on operating procedures of warehouses of the customs authorities (repealed on 30 May 2012)
26. Section 1.4 provided for the responsibility of the head of a customs authority for the proper storage of goods at the warehouse of that authority.
27. Under section 4.3, fees were payable for the storage of goods and vehicles at the customs authorities’ warehouses. The amounts of those fees were set by the Cabinet of Ministers.
28. Section 8.2 provided that goods or vehicles could be released from a customs authority’s warehouse only upon presentation of a bank receipt confirming payment of the storage fees.
3. Code on Administrative Offences 1984 (as worded at the material time)
29. Article 296 provided that if a ruling on an administrative offence was quashed and the administrative-offence proceedings were discontinued, any monetary amounts which had been levied and goods which had been seized were to be returned to the person concerned.
COMPLAINTS
30. The applicants raised several complaints, in particular under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, as well as Article 13 of the Convention.
THE LAW
A. The first applicant’s complaints
1. Alleged violation of Article 1 of Protocol No. 1
31. The first applicant complained that the continued retention of his car by the Kharkiv Customs Office had been arbitrary and contrary to the ruling of the Kyivskyy Court of 16 May 2006 (see paragraph 10 above). He also complained that, when the car had been returned to him, it had been in a deplorable condition. The first applicant relied on Article 1 of Protocol No. 1, which 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.”
(a) Continued retention of the first applicant’s car by the customs authorities
32. The Court notes that, in accordance with Article 35 § 1 of the Convention, the six-month time-limit requires applicants to lodge their applications within six months of the final decision in the process of the exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009). An applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, for example, Fernie v. the United Kingdom (dec.), no. 14881/04, 5 January 2006, and Lelyuk v. Ukraine, no. 24037/08, § 30, 17 November 2016). In the event of a continuing situation, the six-month period runs from the cessation of that situation (see Koval v. Ukraine (dec.), no. 65550/01, 30 March 2004). The concept of a “continuing situation” refers to a state of affairs in which there are continuous activities by or on the part of the State which render the applicant a victim (see Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002‑VII). Complaints which have as their source specific events which occurred on identifiable dates cannot be construed as referring to a continuing situation, even if those events had enduring effects for the applicant (see Camberrow MM5 AD v. Bulgaria, (dec.), no. 50357/99, 1 April 2004, and Meltex Ltd v. Armenia (dec.), no. 37780/02, 27 May 2008).
33. Turning to the present case, the Court notes that the first applicant lodged his application with the Court three years and four and a half months after the customs authorities had returned his vehicle to him (see paragraph 19 above) and six months after the administrative proceedings brought by him against the Kharkiv Customs Office had been completed by a final ruling (see paragraph 21 above). The answer to the question whether the six-month rule was complied with will therefore depend on the assessment of the effectiveness of that remedy.
34. The only reason consistently advanced by the Kharkiv Customs Office in support of its refusal to return the car to the first applicant was the necessity for his cousin, the second applicant, who had been found guilty of a breach of customs rules, to pay the storage fees (see paragraphs 9 and 12 above). It is noteworthy that that requirement did not stem from the customs authority’s discretionary power but was directly provided for by law (see paragraphs 25 and 27-28 above). The first applicant must have been aware of that as soon as the Kyivskyy Court provided an explanation of its ruling of 16 May 2006 on 18 September 2006 (see paragraph 12 above). In other words, the first applicant did not have any effective domestic remedies to exhaust and he ought to have known that on 18 September 2006 at the latest. The Court therefore considers that the six-month period started running on that date. It follows that the applicant’s complaint which he lodged on 14 June 2012 was clearly out of time in that respect. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
(b) Alleged damage to the first applicant’s car during its storage at the customs authority’s warehouse
35. The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with a complaint after all domestic remedies have been exhausted. The purpose of that requirement is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). Furthermore, the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on cases which require the finding of basic facts, which should, as a matter of principle and effective practice, be the domain of domestic jurisdiction (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99 and 7 others, § 69, ECHR 2010).
36. The obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sejdovic v. Italy [GC], no. 56581/00, § 45, ECHR 2006‑II). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success. However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014).
37. In the present case the first applicant did not inform the Court of any complaints he made at the domestic level regarding the alleged damage and deterioration caused to his car during its storage at the warehouse of the Kharkiv Customs Office. In his administrative claim against the Kharkiv Customs Office he only sought, albeit in vain, to have the retention of his car be declared unlawful and to have the vehicle returned to him (see paragraph 15 above). The first applicant did not bring any further proceedings against that authority after it had returned the car to him.
38. The domestic legislation provided that the responsibility for adequate storage of seized goods and vehicles lay with the head of the customs authority in question (see paragraph 26 above). If the first applicant considered that his vehicle had not been stored properly, it was open to him to bring proceedings against the official in charge. He failed to do so, however. Nor did he provide any explanation to the Court in that regard.
39. The Court therefore concludes that the first applicant has not complied with the requirement to exhaust domestic remedies under Article 35 § 1 of the Convention. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. Alleged violation of Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1
40. The first applicant further complained, relying on Articles 6 § 1 and 13 of the Convention, that the domestic courts had failed to restore his property rights. This complaint falls to be examined under Article 13 of the Convention taken in conjunction with Article 1 of Protocol No. 1.
Article 13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
41. The Court has already held that the first applicant must have been aware of the absence of an effective domestic remedy in respect of the retention of his car by the Kharkiv Customs Office on 18 September 2006 at the latest, and that his related complaint under Article 1 of Protocol No. 1 was inadmissible as being lodged outside the six-month time-limit (see paragraph 34 above). The same conclusion holds true in respect of his complaint under Article 13 of the Convention: in order to comply with the six-month rule, the first applicant had to have lodged it within six months after 18 September 2006. Having only lodged this complaint in June 2012, he did not comply with the above-mentioned admissibility criterion. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
42. In so far as the first applicant’s complaint can be understood as pertaining to the alleged damage to his car during its storage by the customs authority, the Court has already noted the absence of any explanation from the first applicant as to why he did not raise any complaints in this regard at the domestic level (see paragraph 37 above). His complaint about the absence of effective domestic remedies is limited to a broad allegation, without details or evidence. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. Alleged violation of Article 6 § 1 of the Convention
43. The first applicant also complained under Article 6 § 1 of the Convention that the ruling of 16 May 2006 had not been enforced and that the Kyivskyy Court had wrongly refused to examine his civil claim against the Kharkiv Customs Office. The relevant part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
44. In so far as the first applicant complained of the non-enforcement of the ruling of 16 May 2006, the Court notes that that ruling was issued to explain the Kyivskyy Court’s earlier ruling of 13 April 2006, given within the administrative-offence proceedings against the second applicant (see paragraphs 7 and 10 above). However, on 1 September 2008 the Kharkiv Regional Court of Appeal quashed the ruling of 13 April 2006 (see paragraph 16 above). Accordingly, the issue of the enforcement of either the ruling of 13 April 2006 or that of 6 May 2006 became irrelevant. In other words, the impugned non-enforcement had been a continuing situation, which ceased to exist on 1 September 2008. Given that the first applicant lodged this complaint with the Court only on 14 June 2012, he did not comply with the six-month time-limit under Article 35 § 1 of the Convention (see paragraph 32 above). Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention
45. As regards the first applicant’s complaint about the refusal of the Kyivskyy Court to examine his civil claim (see paragraphs 13-14 above), the Court notes that an identical claim by him was examined on the merits in administrative proceedings (see paragraphs 15, 17 and 20-21 above). Accordingly, there was no restriction on the first applicant’s right of access to a court as guaranteed under Article 6 § 1 of the Convention. This complaint must therefore be declared inadmissible as being manifestly ill‑founded under Article 35 §§ 3 (a) and 4 of the Convention.
B. The second applicant’s complaints
46. The second applicant complained, with reference to Article 6 § 1 of the Convention, that the ruling of the Kyivskyy Court ordering him to pay the storage fees to the customs authorities had been unlawful.
47. The Court notes that, regardless of other possible grounds for declaring this complaint inadmissible, it was lodged beyond the six-month time-limit to be calculated from 1 September 2008, when the order in issue became invalid (see paragraph 16 above). Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
48. The second applicant further complained in general terms that the domestic courts had failed to protect his cousin’s property rights.
49. The Court reiterates that in order to bring an application, an applicant must be able to claim to be a victim of a violation of the Convention within the meaning of Article 34. This means that the individual concerned must be able to show that he or she was “directly affected” by the measure complained of (see, for example, Lambert and Others v. France [GC], no. 46043/14, § 89, ECHR 2015 (extracts)).
50. The second applicant therefore has no standing to complain of alleged breaches of the Convention rights of his cousin.
51. It follows that this complaint should be rejected as being incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
C. Remaining complaints raised by both applicants
52. The applicants complained, relying on Article 17 of the Convention, that the Kharkiv Customs Office had overstepped its competence and had abused its rights. They also complained that the domestic authorities had acted in breach of Article 18 of the Convention.
53. The Court considers that the complaints under Articles 17 and 18 do not go beyond the allegations of breaches of other provisions of the Convention as set out above and therefore no issues arise under Articles 17 and 18 proper (compare Abdi Ahmed and Others v. Malta (dec.), no. 43985/13, § 85, 16 September 2014). It follows that these complaints are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be declared inadmissible in accordance with Article 35 § 4 thereof.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 1 October 2020.
Anne-Marie Dougin Mārtiņš Mits
Acting Deputy Registrar President
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