FIFTH SECTIONCASE OF KRAYEVA v. UKRAINE(Application no. 72858/13)  JUDGMENTArt 1 P1 • Control of the use of property • Imposition of disproportionate fine on customs clearance officer for incorrect customs declaration • Mandatory fine equivalent to the value of the imported goods precluding domestic courts from conducting any balancing exercise between interests at stake and assessing individual circumstancesArt 41 • Just satisfaction • Reopening of domestic proceedings most appropriate form of redress STRASBOURG13 January 2022FINAL 13/04/2022  This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Krayeva v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou-Vikström, Jovan Ilievski, Lado Chanturia, Ivana Jelić, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the application (no. 72858/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Agnesa Eduardivna Krayeva (“the applicant”), on 5 November 2013;the decision to give notice to the Ukrainian Government (“the Government”) of the complaint concerning an alleged interference with her property rights;the parties’ observations;Having deliberated in private on 30 November 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The case concerns an alleged breach of customs regulations by the applicant while conducting the customs clearance of imported goods and the sanction imposed on her in that connection, namely a fine in an amount equal to the value of the imported goods. It raises an issue under Article 1 of Protocol No. 1 to the Convention.THE FACTS2. The applicant was born in 1986 and lives in Zaporizhzhya. She was granted legal aid and was represented before the Court by Mr S. Perminov, a lawyer practising in Zaporizhzhya.3. The Government were represented by their Agent, Mr I. Lishchyna.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. At the time of the events the applicant worked as a customs clearance officer at D. company. On 23 April 2013, on behalf of her employer, the applicant submitted to the customs office a customs clearance declaration, an invoice and other documents in respect of certain goods bought from a Swiss company (“the seller”). In the customs declaration the applicant indicated 46,298 United States dollars (USD) as the value of the goods. The same amount was indicated by the seller in the invoice. However, the contract for the sale of the goods set their value at 48,661.56 euros (EUR).6. According to the applicant, she discovered the above-mentioned discrepancy in the documents on the following day. On that same day she received a letter from the seller in which it admitted having sent the wrong invoice to her and apologised for the error. She informed the customs office of the mistake and requested the opportunity to rectify it. However, the customs office refused to accept her written submission and drew up an administrative offence report instead. In her written explanation to the customs office, the applicant submitted, inter alia, that she had provided the wrong data to the customs office by negligence, having overlooked the mistake made by the seller in the invoice.7. According to the Government, who relied on the facts as established by the customs authorities, it was the customs office which had revealed the discrepancy at issue after the applicant had provided, at their request, additional documents regarding the customs clearance, which had included the correct invoice. It was only after being contacted on the subject by the customs office that the applicant had confirmed, in her written explanations, that she had made a mistake in the declaration and provided the customs office with the explanatory note from the seller.8. On 24 April 2013 the customs authority issued a decision finding the applicant liable under Article 483 § 1 of the Customs Code for having provided false data to the customs office which had resulted in underpaid import duties in the amount of 22,477.44 Ukrainian hryvnias (UAH – about EUR 2,000 at the time). The applicant challenged that decision before a court, arguing, inter alia, that she had not been deliberately seeking to circumvent the customs regulations, but that her actions had resulted from incorrect data in the invoice provided to her by the seller, which she had initially overlooked.9. On 15 July 2013 the Leninskyy District Court of Zaporizhzhya discontinued the administrative offence proceedings against the applicant on account of the lack of constituent elements of an administrative offence in her actions. Relying in particular on the written explanation by the seller, the court found that the mistake in the invoice had been made by the seller and that at the time when the applicant had started the customs clearance procedure and had submitted the declaration and the invoice at issue to the customs office, she had been unaware of the mistake. There was also no evidence that the applicant herself had forged any document. The customs office appealed, arguing that the applicant had knowingly submitted incorrect data and an incorrect invoice to the customs office.10. During the appeal proceedings the applicant admitted she had made an error and asked the court not to impose too severe a punishment on her. The applicant’s lawyer reiterated the arguments raised by her before the first‑instance court.11. By a final judgment of 23 August 2013, the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) quashed the decision of the first‑instance court and upheld that of the customs office. In doing so, it mainly relied on the administrative offence report in respect of the applicant, her responsibility as the declarant, her acknowledgment that she had submitted incorrect data to the customs office, and the fact that the State had suffered pecuniary losses as a result of her actions.The Court of Appeal went on to note, in a general way, that when deciding on the sanction, it had taken into account the nature of the offence, the degree of the applicant’s guilt, information about her character and her property status, and other aggravating and mitigating factors. It ordered that the applicant pay a fine in the amount equal to the value of the imported goods (EUR 48,661.56) and that the goods be confiscated as prescribed by the relevant Article of the Customs Code.12. It appears from the parties’ submissions that the above-mentioned decision of 23 August 2013 has not yet been enforced, and that the enforcement proceedings have been opened and closed on a number of occasions. According to the latest information submitted by the Government, on 24 December 2020 the relevant writ of execution was again sent back by the bailiffs to the customs office on account of the applicant’s lack of funds.RELEVANT LEGAL FRAMEWORK13. The Customs Code of Ukraine of 13 March 2012, as in force at the material time, provided as follows.Pursuant to Article 266 § 5, a person authorised to declare goods on behalf of a declarant had the same responsibilities and rights and bore the same liability as the declarant.Pursuant to Article 483 § 1, the transfer of goods, or actions aimed at transferring goods, across the customs border of Ukraine, while concealing them from customs control by means of, inter alia, submitting to the customs office forged documents or documents containing false data relevant for determining the customs value of the goods, was punishable by a fine in an amount equal to the value of the goods which were the objects of the customs offences, and by the confiscation of those goods and of any goods or means of transport containing a specific hiding place used in transferring such goods across the customs border of Ukraine.14. Under Articles 361 and 362 of the Code of Administrative Justice, a party to the case can seek reopening of the proceedings in his or her case when an international judicial body, whose jurisdiction is accepted by Ukraine, has found a violation by Ukraine of its international obligations during the judicial examination of the case.15. Section 17 of the Execution of Judgments of the European Court of Human Rights Act of 2006 provides that the courts, when deciding cases, are to apply the Convention and Protocols and the Court’s case-law as a source of law.16. Section 19 of the International Treaties Act of 2004 provides that international treaties are deemed to be a part of domestic law and prevail over conflicting provisions of domestic legislation.THE LAWALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 TO THE CONVENTION17. The applicant complained in substance under Article 1 of Protocol No.1 to the Convention that the fine imposed on her in the administrative offence proceedings had been unlawful and disproportionate. Article 1 of Protocol No. 1 reads 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.”Admissibility18. The Government did not submit any observations as regards the admissibility of the present complaint. The objection they raised concerned the confiscation of the goods as ordered by the court in addition to the fine, a measure which had not been complained of by the applicant, since she had not been the owner of those goods.19. The Court has already found, although in a different context, that Article 1 of Protocol No. 1 was applicable to a situation where a fine had been imposed on the applicant (see Phillips v. the United Kingdom, no. 41087/98, § 50, ECHR 2001‑VII; Valico S.r.l. v. Italy (dec.), no. 70074/01, 21 March 2006; and DELTA PEKÁRNY a.s. v. the Czech Republic, no. 97/11, § 125, 2 October 2014). It sees no reason to hold otherwise in the present case.20. Accordingly, the Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsSubmissions by the parties21. The applicant argued that the Court of Appeal had not had any grounds to find that she had wilfully provided the wrong data to the customs authorities, because the fact that her actions had stemmed from a mistake made by the seller in the invoice had been supported by evidence, including the seller’s letter of 24 April 2013. However, her arguments on that issue had been disregarded by the court and an excessive fine had been imposed on her as a sanction. The severity of the fine had put her in financial difficulty, since her monthly salary amounted to UAH 3,300 (about EUR 96[1]). She was obliged each month to give away part of her salary to honour her debt and her property was under the permanent threat of confiscation by the bailiffs.22. The Government admitted that the sanction imposed on the applicant had amounted to an interference with her right of property. However, that interference had been lawful and proportionate. In particular, they submitted that the sanction at issue had been provided for by Article 483 § 1 of the Customs Code and had been mandatory; when imposing the sanction, the domestic court had taken into account the applicant’s guilt in relation to her actions, information about her character and other relevant factors. The Government further suggested that the applicant should have tried to obtain redress for the damage she had sustained from the seller of the goods which had made the mistake in the invoice.The Court’s assessment23. In the present case, the applicant was given a fine in the amount of EUR 48,661.56 as a sanction for the administrative offence of which she had been found guilty and in respect of which the relevant court’s decision had taken effect. The Court reiterates in this connection that the imposition of a fine will in principle constitute interference with the right guaranteed by the first paragraph of Article 1 of Protocol No. 1 to the Convention, as it deprives the person concerned of an item of property, namely the sum that has to be paid (see Valico S.r.l., cited above). Even though it appears from the case file that to date the applicant has not paid the fine, she is under an obligation to pay it, so it cannot be disputed that she has incurred actual expenses and is facing future losses. Accordingly, there has been an interference with the applicant’s property rights (see, mutatis mutandis, Misiukonis and Others v. Lithuania, no. 49426/09, § 54, 15 November 2016).24.

Article of the Convention at issue: Article 1
Outcome: violation