FIFTH SECTIONCASE OF LAPTYEV v. UKRAINE(Application no. 30666/13)    JUDGMENT STRASBOURG13 April 2023    This judgment is final but it may be subject to editorial revision.In the case of Laptyev v. Ukraine,The European Court of Human Rights (Fifth Section), sitting 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. 30666/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 April 2013 by a Ukrainian national, Mr Vadym Ivanovych Laptyev, born in 1967 and living in Kyiv (“the applicant”) who was represented by Mr R. A. Shchedrin, a lawyer practising in Kyiv;the decision to give notice to the Ukrainian Government (“the Government”), represented by their agent, Ms M. Sokorenko, of the complaint under Article 1 of Protocol No. 1 and to declare the remainder of the application inadmissible;the parties’ observations;Having deliberated in private on 23 March 2023,Delivers the following judgment, which was adopted on that date:SUBJECT MATTER OF THE CASE1. The case concerns an alleged breach of customs regulations during the customs clearance of goods imported by the applicant’s company and the sanction imposed on the applicant, as the company’s managing director, in that connection, namely the confiscation of the goods combined with a fine in an amount equal to the value of the imported goods. The case raises an issue under Article 1 of Protocol No. 1 to the Convention.2. The applicant was the sole owner and managing director of the private company Finance-Business-Investments (“FBI”), based in Kyiv.3. On 12 November 2012 the Kyiv customs office conducted a customs check on an express shipment of documents sent by All Star Link Logistics Ltd in Taiwan to Mr Sl of Slaig Medical Ltd in Kyiv. The correspondence included an original commercial invoice (no. АТ 121017) dated 17 October 2012 issued by the company Zh in China to FBI. It concerned medical equipment (wheelchairs and their components) for the amount of 42,708.70 United States Dollars (USD). No copy of the invoice has been made available to the Court.4. On 30 November 2012 the limited liability company Inter Consulting (“IC”), represented by Mr V, conducted customs clearance of goods (wheelchairs and their components) imported by FBI. The value of the goods was declared as 69,290.40 euros (EUR). The documents submitted to the customs authorities together with the customs clearance declaration included a trade agreement of 3 September 2012 between FBI and Slige s.r.o (“S”), a company registered in the Czech Republic, concerning the equipment in issue and a pro-forma invoice No. AT121017 dated 17 October 2012 issued by S to FBI for the amount of EUR 69,290.40. The latter document has been made available to the Court.5. On 5 December 2012 the customs authority issued an administrative offence report finding the applicant liable under Article 483 § 1 of the Customs Code of Ukraine (“the CC”) for having concealed the goods imported by FBI from customs control by providing false data concerning their customs value. According to the report, a comparative analysis of the documents discovered in the international shipment on 12 November 2012 (see paragraph 3 above) and those submitted during the customs clearance of the goods imported by FBI showed that they concerned the same batch of goods, which FBI had bought from Zh for USD 42,708.Noting further that the delivery address of the correspondence inspected on 12 November 2012 was the same as the actual and registered address of FBI and that the applicant was FBI’s managing director with first signature authority, the customs authorities concluded that there was sufficient evidence to conclude that he had committed the imputed offence.It was also indicated in the report that by virtue of the relevant legislation FBI was exempted from paying value-added tax (VAT) on the imported medical equipment and that a zero-rate import duty was applicable to its transactions.6. The applicant challenged the administrative offence report before a court, arguing, inter alia, that he had not committed any offence. In particular, neither he nor his company had had any contractual relationships with Zh and he was unaware why, by whom and under what circumstances the original invoice referred to by the customs authorities had been sent to Sl (see paragraph 3 above).Citing extensively the terms of the trade agreement of 3 September 2012 (see paragraph 4 above), the applicant submitted that FBI had bought the medical equipment from S for an agreed price which was indicated in the pro‑forma invoice issued by S. It was also agreed that the shipment of goods bought in China by S for FBI be carried out, at S’s request, by the company Zh directly to FBI. Both the trade agreement and the pro-forma invoice issued by S had been duly submitted at the customs clearance. According to the applicant, the difference in the amount indicated in the invoice issued by Zh and that issued by S was explained by the fact that the final price of the goods indicated in the pro-forma invoice issued by S took into account the delivery costs borne by S in accordance with the agreement of 3 September 2012.The applicant further submitted that the customs authorities had not defined what the “correct” value of the goods was and why they thought that was the case. He further argued that, whatever the customs value of the imported medical equipment, his company was under no obligation to make payments to the State budget; thus no harm could have been caused to the State.Lastly, the applicant submitted that he had not been “the declarant”, within the meaning of the CC, since he had been neither the person who had filled in and submitted documents for customs clearance nor the employee at FBI in charge of customs clearance issues.

Outcome for Article P1-1: violation