FIFTH SECTION     CASE OF KHRISTOV v. UKRAINE (Application no. 24465/04)        JUDGMENT   STRASBOURG 19 February 2009 FINAL 05/06/2009 This judgment may be subject to editorial revision.In the case of Khristov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Peer Lorenzen, President, Rait Maruste, Karel Jungwiert, Renate Jaeger, Isabelle Berro-Lefèvre, Mirjana Lazarova Trajkovska, judges, Stanislav Shevchuk, ad hoc judge,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 27 January 2009,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 24465/04) 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, Mr Dmitriy Stepanovich Khristov (“the applicant”), on 5 July 2004.2. The applicant died on 1 August 2006. On 1 March 2008 his children, Gennadiy Khristov, Olena Kristova, and Lyudmyla Filobok, being the sole heirs of the applicant, expressed their wish to continue the proceedings before the Court on the applicant’s behalf. The applicant and his children were represented by Mr M. Khoteyev, a lawyer practising in Melitopol. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.3. The applicant alleged, in particular, that a final judgment in his favour had been quashed by way of extraordinary review, in violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.4. On 11 May 2006 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).THE FACTSI. THE CIRCUMSTANCES OF THE CASE5. The applicant was born in 1939 and lived in Melitopol.6. In 1996 a Moldovan national transferred his car to the applicant and issued a power of attorney granting the applicant broad rights in respect of the car including, inter alia, the right to drive and to sell it. The Moldovan national, however, remained the owner of the car.7. The applicant did not pay customs clearance for importing the car from a foreign country. In order to comply with the requirements of domestic customs law, the applicant returned across the Ukrainian border every third month, declaring the car as newly imported and giving an undertaking to re-export it within the following three-month period.8. In October 1998 the applicant was unable to undertake his regular trip outside Ukraine because of health problems. On 2 June 1999 the applicant attempted to cross the border with his car. However, the customs officer, having noted that the three-month re-export period was substantially overdue, seized the car pending adjudication of the applicant’s administrative offence.9. On 24 June 1999 the Primorskyy District Court of Mariupol (hereafter “the District Court”) found the applicant guilty of a customs offence, fined him 74 Ukrainian hryvnas (UAH) and ordered the confiscation of the car.10. On 27 August 1999 the Primorskyy District Prosecutor, at the applicant’s request, lodged with the District Court a protest, seeking to open the extraordinary review proceedings in the applicant’s case.11. On 14 October 1999 the District Court, by way of extraordinary review, adopted a judgment by which it quashed the fine as being time-barred, while leaving the confiscation order in force.12. On 16 March 2000 the car was sold by public auction at the price of UAH 7,970 in the course of the enforcement of the judgment of 24 June 1999. The funds received from the sale were transferred to the State budget.13. On 23 October 2000 the President of the Donetsk Regional Court, on a request by the applicant for extraordinary review, reopened the proceedings in the applicant’s case and quashed the judgments of 24 June 1999 and 14 October 1999, finding, in particular, that under the Constitution the car could not be confiscated from the applicant as he had not been its owner.14. On 16 March 2001 the applicant brought a claim in the Starokyivskyy District Court against the Ministry of Justice and the Customs Office, seeking recovery of the confiscated car or reimbursement of its value and compensation for non-pecuniary damage.15. On 10 April 2001 the court left the claim unexamined on account of the applicant’s failure to comply with procedural requirements, stating, inter alia, that the applicant failed to provide any calculation of the non-pecuniary damage and to enclose the documents for the car.16. By letters of 12 April 2001, 10 October 2001, 19 March 2002 the Customs Office confirmed to the applicant that he could be reimbursed the value of the confiscated car upon finalisation of procedural formalities.17. On 25 April 2002 the President of the Supreme Court, upon a request by the Customs Office for extraordinary review, reopened the proceedings in the applicant’s case and, relying on Article 294 of the Code on Administrative Offences, quashed the judgment of 23 October 2000 in the applicant’s favour as unfounded, thereby upholding the District Court’s judgments of 24 June and 14 October 1999. The judgment provided, inter alia, that under customs law, which was applicable in the applicant’s case, confiscation was to be ordered irrespective of whether the applicant had been the owner of the car or not.18. By a letter of 6 August 2004 from the Customs Office the applicant was informed about the judgment of 25 April 2002 and served with a copy of it. The applicant alleged that he had not previously been aware of the judgment.II. RELEVANT DOMESTIC LAWCode on Administrative Offences (in the wording in force at the material time)19. Article 287 of the Code provided that a decision imposing an administrative sanction could be appealed against, except for decisions given by a first-instance court. The latter were final and were not subject to the ordinary administrative appeal procedure, unless the legislation provided otherwise.20. Article 290 of the Code provided that a prosecutor could lodge a protest against a decision imposing an administrative sanction.21. Article 294 of the Code provided that a court judgment concerning an administrative offence could be reviewed by a judge of the same court upon a protest lodged by a prosecutor, or by the president of the higher court of his or her own motion.22. On 24 September 2008 the Code was amended to the effect that it provided an ordinary appeal procedure for challenging the decisions given by the first-instance courts in administrative cases.THE LAWI. SCOPE OF THE CASE23. The applicant complained that the administrative proceedings in his case had been unfair in so far as the final judgment of 23 October 2000 in his favour had been quashed by the President of the Supreme Court by way of extraordinary review. He further complained that his attempts to have the confiscated car returned to him or its value reimbursed had been set at nought as a result of the extraordinary review conducted by the President of the Supreme Court, following which the confiscation order had been restored. The Court finds it appropriate to consider these complaints under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 respectively.II. AS TO LOCUS STANDI24. The applicant died on 1 August 2006, while the case was pending before the Court (see paragraph 2 above). It has not been disputed that his children are entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see, among other authorities, Benyaminson v. Ukraine, no. 31585/02, § 84, 26 July 2007, and Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the ensuing text.III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION25. Article 6 § 1 of the Convention provides, in so far as relevant, as follows:“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”A. Admissibility26. The Government maintained that this complaint was inadmissible since the applicant had failed to submit it within the six-month period as required by the Convention.27. The applicant disagreed, claiming that he had been notified about the judgment of 25 April 2002 only by the letter of 6 August 2004 from the Customs Office.28. The applicant has submitted evidence to the effect that he became aware of the judgment of 25 April 2002 only in August 2004, whereas the Government provided no evidence to the contrary. The Court therefore accepts the applicant’s allegation in that regard. It further observes that since this complaint was first mentioned by the applicant in his submissions of 28 August 2004, no issue under the six-month rule arises.

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