FIFTH SECTIONCASE OF YAREMIYCHUK AND OTHERS v. UKRAINE(Applications nos. 2720/13 and 6 others - see appended table)  JUDGMENTArt 1 P1 • Control of the use of property • Unlawful confiscation (in respect of one applicant) of entire undeclared sum of money to border customs instead of that in excess of legal limit • Disproportionate mandatory confiscation (in respect of remaining applicants) of undeclared excess amount and imposition of fines for breaching customs control procedures • Mandatory nature of sanctions under new legislation precluding domestic courts from conducting balancing exercise between interests at stake and assessing measures on a case-to-case basis This version was rectified on 17 January 2022under Rule 81 of the Rules of Court STRASBOURG9 December 2021 FINAL 09/03/2022 This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.In the case of Yaremiychuk and Others v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Lətif Hüseynov, Jovan Ilievski, Ivana Jelić, Mattias Guyomar, judges,and Victor Soloveytchik, Section Registrar,Having regard to:the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by seven Ukrainian nationals (“the applicants”) on the various dates indicated in the Appendix;the decision to give notice of the applications to the Ukrainian Government (“the Government”);the parties’ observations;the letter from the Russian Government informing the Court that they do not wish to make use of their right to intervene in the proceedings concerning application no. 70418/13 (Article 36 § 1 of the Convention);Having deliberated in private on 9 November 2021,Delivers the following judgment, which was adopted on that date:INTRODUCTION1. The present cases mainly concern the applicants’ complaint under Article 1 of Protocol No. 1 that the imposition of fines as well as the confiscation in full of their lawfully acquired money following their failure to declare it to the customs authorities had been an unlawful and disproportionate measure.THE FACTS2. The list of applicants and the relevant details of the applications are set out in the appended table.3. The Government were represented by their Agent, Mr I. Lishchyna, of the Ministry of Justice.4. The facts of the case, as submitted by the parties, may be summarised as follows.5. When crossing the Ukrainian border the applicants used the “green channel” to pass through the customs control area without making a written declaration in respect of the cash they were carrying, which amounted to more than 10,000 euros (EUR). The domestic courts found the applicants guilty of having breached customs control procedures in the simplified customs control area (Article 471 of the Customs Code). Fines for the amount specified in Article 471 ranging between 73 and 165 euros were imposed on the applicants and the confiscation of the portion of cash in excess of EUR 10,000 was ordered in each case, with the exception of application no. 38071/13, in which the entire sum of cash carried by the applicant was seized (see the Appendix below for more details). In determining the case, the domestic courts essentially relied on the Regulation on the transportation of cash and precious metals across Ukraine’s customs border, which provided for the mandatory declaration in writing at the border of any foreign currency amounting to more than EUR 10,000; that provision placed, in the courts’ view, a restriction on bringing any foreign currency into Ukraine (see paragraph 8 below). The applicants’ arguments that their failure to declare the money had not been intentional, that the money in issue had been lawfully acquired and the amount was not insignificant to the applicants, as well as Mr Popelyuk’s argument that he owned only part of the money (no. 74638/13) were disregarded or dismissed by the domestic courts.6. On 21 July 2021 the Constitutional Court declared the part of Article 471 of the Customs Code providing for the mandatory confiscation of all undeclared cash to be unconstitutional. It found, in particular, that such a measure was not capable of ensuring the requisite balance between the public interest and an individual’s right to the peaceful enjoyment of his or her possessions and that therefore it was contrary to the rule of law. The Constitutional Court further ruled that the impugned provision of the Customs Code would continue to apply for six months in order to give the authorities time to draft an alternative regulation concerning liability for the administrative offence in issue. On 14 September 2021 the relevant legislative amendments were submitted to parliament.RELEVANT LEGAL FRAMEWORK7. The Customs Code of 13 March 2012, as worded at the material time, provided as follows:Article 197Restrictions on the movement of certain goods across the customs border of Ukraine“1. In the cases provided for by law, certain goods shall be subject to restrictions on their movement across the customs border of Ukraine. The release of such goods across the customs border of Ukraine, and customs clearance, shall be carried out by the revenue and duties authorities on the basis of the documents obtained by use of information technology confirming that those restrictions have been observed, issued by the public authorities vested with carrying out appropriate checks and other legal entities authorised to issue them, if the presentation of such documents to the revenue and duties authorities is provided for in the laws of Ukraine.2. Lists of such goods (with their description and code under the Ukrainian Classification of Goods for Foreign Economic Activity), and the procedure for the issuing of authorisations and their circulation with the use of information technology, shall be approved by the Cabinet of Ministers of Ukraine. ...3. Restrictions on importing and exporting currency into and from Ukraine, and the procedure for moving currency across the customs border of Ukraine, including specific provisions on declaring currency (in particular, the specification of the amount subject to written or oral declaration) may be determined by the National Bank of Ukraine.”Article 366Dual-channel system of customs supervision of goods and means of transport moved by individuals across the customs border of Ukraine“1. The dual-channel system is a simplified system of customs control that allows citizens to proceed, with a declaration, through one of the two channels for entry (including driving through by means of private transport) across the customs border of Ukraine.2. The channel marked with the colour green (‘green channel’) shall be intended for citizens who declare that they are moving goods across the customs border of Ukraine which: (i) are in amounts that are not subject to customs charges; (ii) do not fall under the prohibition or restriction on importation into or exportation from the customs territory of Ukraine as established by legislation; and (iii) are not subject to a written declaration....5. The choice of passing through the green channel shall be regarded as an individual’s statement that the goods moved by him or her across the customs border of Ukraine are not subject to a written declaration, customs fees, or any prohibitions and/or restrictions on importing/exporting into and out of the customs territory of Ukraine, and shall constitute acts of legal significance.6. Citizens entering (or driving) through the green channel shall be exempted from filling out a customs declaration. Exemption from filling out the customs declaration shall not discharge the individuals concerned from compliance with the procedure for the movement of goods across the customs border of Ukraine.”Article 471Violations of the customs control procedure in simplified customs control areas (channels)“1. Violations of the customs control procedure in simplified customs control areas (channels), as specified by this Code, that is, where an individual who has chosen to go through a green channel is carrying goods that are prohibited from being carried across the customs border of Ukraine or subject to restrictions in that regard, or is carrying them in quantities exceeding the non-taxable limit set for the movement of such goods across the customs border of Ukraine,– shall be punishable by a fine of one hundred times the minimum personal tax-free allowance and, when direct objects of the offences are goods whose movement across the customs border of Ukraine is prohibited or restricted by the legislation of Ukraine, by their confiscation.”8. The Regulation on the transportation of cash and precious metals across Ukraine’s customs border, approved by Decree no. 148 of the National Bank of Ukraine of 27 May 2008 (as amended on 25 July 2012), provided as follows:“2. Bringing cash into and out of Ukraine1. Individuals may bring up to EUR 10,000 in cash (or the equivalent) into and out of Ukraine without declaring it in writing at the customs office.2. Individual residents may bring more than EUR 10,000 in cash (or the equivalent) into and out of Ukraine subject to making a full declaration in writing at the customs office and furnishing a withdrawal receipt issued by a bank (financial institution) for the portion exceeding EUR 10,000 (or the equivalent). Withdrawal receipts shall be valid for thirty calendar days from the issue date.3. Individual non-residents may bring more than EUR 10,000 in cash (or the equivalent) into Ukraine subject to making a full declaration in writing at the customs office.4. Individual non-residents may bring more than EUR 10,000 in cash (or the equivalent) out of Ukraine if the amount does not exceed the amount declared by the individual at the customs office on his or her arrival in Ukraine. In this case, the cash is subject to a full declaration being made in writing at the customs office.”THE LAWPRELIMINARY ISSUELocus standi of the applicant’s mother (application no. 38071/13)9. On 26 October 2020 the applicant’s mother informed the Court of the applicant’s death on 5 September 2015 and of her wish to pursue the application on his behalf.10. The Government requested the Court to strike the application out of the Court’s list of cases in view of the applicant’s death.11. In the cases in which an applicant died after having lodged an application, the Court has accepted that the next-of-kin or heir may in principle pursue the application, provided that he or she has sufficient interest in the case (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 97, ECHR 2014). In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons near to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant’s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000‑XII).12. In view of the above and having regard to the circumstances of the present case, the Court accepts that the applicant’s mother has a legitimate interest in pursuing the application in the late applicant’s stead (see, for instance, Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014; Mammadov and Others v. Azerbaijan, no. 35432/07, § 80, 21 February 2019; and Ghavalyan v. Armenia, no. 50423/08, § 59, 22 October 2020).JOINDER OF THE APPLICATIONS13. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 114. The applicants complained that the imposition of fines as well as the confiscation in full of their lawfully acquired money following their failure to declare it to the customs authorities had been an unlawful and disproportionate measure. They relied on Article 1 of Protocol No. 1, which 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.”Admissibility15. The Government did not raise any objections as regards the admissibility of the complaints. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.MeritsThe parties’ submissions(a)   The applicants16. Mr Rogach (no. 39154/15), Mr Gordeyev (no. 38071/13), Mr Tarakhovskyy (no. 60818/15) and Mr Sheverdinov (no. 70418/13) submitted that the confiscation measure had been unlawful and unforeseeable. Article 471 of the Customs Code, relied on by the domestic courts, provided that the confiscation measure applied solely to goods whose import into Ukraine was prohibited or restricted. However, while physical persons were obliged to declare at the border any cash amounting to more than EUR 10,000, this was purely for information purposes and did not represent a “restriction” within the meaning of Article 471 of the Customs Code. The applicants referred, inter alia, to Article 366 of the Customs Code, which established the framework for using the green channel and distinguished between goods which were subject to a written declaration and those whose import into Ukraine was prohibited or restricted (see paragraph 7 above).17. Mr Gordeyev (no. 38071/13) complained further that the entire sum of cash he had been carrying had been confiscated from him, not just the portion exceeding EUR 10,000.18. According to all the applicants, the confiscation measure was an excessive and disproportionate measure: it had not been illegal to carry foreign currency across the customs border of Ukraine; the money had been legally acquired and had not been concealed but had been presented to customs officers at their request; the failure to declare the money had not been intentional and had not caused any damage to the State; and the confiscated amounts represented a not insignificant sum of money for the applicants. Despite being aware of all those factors, the domestic courts had nevertheless imposed the confiscation order, even though a fine would have been sufficient in the circumstances of their cases. According to the applicants, their situation was very similar to that of the applicant in Sadocha v. Ukraine (no. 77508/11, 11 July 2019), in which the Court had found that the undeclared money had been confiscated from the applicant in breach of Article 1 of Protocol No. 1.(b)   The Government19. The Government conceded that there had been an interference with the applicants’ right of property when the domestic authorities had confiscated the undeclared cash from the applicants. However, the interference had been lawful and proportionate. Without specifically addressing the applicants’ arguments as regards the lawfulness of the application of the confiscation measure in their cases, they submitted that the confiscation, as a sanction for the administrative offence in question, had been provided for by Article 471 of the Customs Code and that the applicants were or should have been aware that the transfer of a considerable sum of cash across the border was subject to certain restrictions provided for by law. They could have reasonably been expected to make some enquiries into this matter before setting out on a journey.20. The State also had a right and a duty to detect and monitor the movement of cash across its borders, since large sums of cash might be used for money-laundering, drug trafficking, the financing of terrorism or organised crime, tax evasion or the commission of other serious financial offences.The Court’s assessment21. The Court notes that it is not in dispute between the parties that the confiscated money constituted the applicants’ possession, except for Mr Popelyuk, who claimed he had only owned a part of the confiscated sum, and whose alleged “possession” at issue in the present case is the money he claims as his own (see No. 4 in the Appendix). It is likewise not in dispute that domestic courts’ decisions ordering confiscation of the undeclared cash amounted to an interference with the applicants’ right to the peaceful enjoyment of their possessions guaranteed by Article 1 of Protocol No. 1. The Court finds no reason to hold otherwise.22. It further reiterates its consistent approach according to which a confiscation measure, even though it involves a deprivation of possessions, constitutes control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1. However, this provision must be construed in the light of the general principle set out in the first sentence of the first paragraph (see, among other authorities, Perdigão v. Portugal [GC], no. 24768/06, § 57, 16 November 2010; Ünsped Paket Servisi SaN. Ve TiC. A.Ş. v. Bulgaria, no. 3503/08, § 36, 13 October 2015; and Gyrlyan v. Russia, no. 35943/15, § 21, 9 October 2018).23. The first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful. The existence of a legal basis in domestic law does not suffice, in itself, to satisfy the principle of lawfulness which, in addition, presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 187, ECHR 2012, and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 96, 25 October 2012).24. The Court has also acknowledged in its case-law that, however clearly drafted a legal provision may be, in any system of law there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adapting to changing circumstances. Again, while certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances.

Outcome for Article 41: violation