FIFTH SECTION
CASE OF MILACHIKJ v. NORTH MACEDONIA
(Application no. 44773/16)
 
 
JUDGMENT
 
Art 6 § 2 • Presumption of innocence • Language used by higher courts, dismissing applicant’s civil compensation claim regarding a car impounded from him in earlier discontinued misdemeanour proceedings, not to be reasonably read as an affirmation imputing criminal liability, given the nature and context of the civil proceedings • Compensation claim examined in a different context from that of misdemeanour proceedings, before different courts with different compositions • Applicant not dispensed from obligation to prove civil claim in accordance with applicable domestic rules on the burden of proof
 
STRASBOURG
14 October 2021
 
FINAL
 
14/01/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Milachikj v. North Macedonia,
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,
 Lado Chanturia,
 Arnfinn Bårdsen, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 44773/16) against the Republic of North Macedonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Macedonian/citizen of the Republic of North Macedonia, Mr Zoran Milachikj (“the applicant”), on 29 July 2016;
the decision to give notice of the application to the Government of North Macedonia (“the Government”);
the parties’ observations;
Having deliberated in private on 7 and 13 September 2021,
Delivers the following judgment, which was adopted on the last‑mentioned date:
INTRODUCTION
1. The case concerns an alleged violation of the presumption of innocence (Article 6 § 2 of the Convention) during compensation proceedings regarding a car which had been impounded from him in the context of misdemeanour proceedings for an administrative customs-related offence, following the discontinuation of the misdemeanour proceedings as being time-barred. THE FACTS
2. The applicant was born in 1955 and lives in Ohrid. He was represented before the Court by Mr E. Balaban, a lawyer practising in Ohrid. 3. The Government were represented by their acting Agent, Ms D. Djonova. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 13 January 2006 the police became suspicious that a car that the applicant was driving, which he had previously acquired from a foreign national and which had been registered with foreign number plates, had a forged registration certificate and fake number plates. The police impounded the car and reported the matter to the Customs Authority on the suspicion that no taxes or customs duties had been paid for it, which was an offence punishable under section 206 of the Customs Act (see paragraph 11 below). In June 2006 the Customs Authority instituted misdemeanour proceedings under section 207 in conjunction with section 206 of the Customs Act (see paragraphs 11 and 12 below), submitting that he ought to have known that the car had not been declared to the customs authorities and that customs duties and other taxes had not been paid. It also sought the confiscation of the car, which was a mandatory measure specified in section 208 of the Customs Act (see paragraph 13 below). 6. After the courts rejected the application for lack of jurisdiction, proceedings were brought before the Misdemeanour Commission within the Customs Authority (“the Commission”). In a decision of 10 December 2009 the Commission found the applicant liable for the administrative offence in question and imposed a fine on him (see paragraph 11 below), holding that “it would attain the purported aim, namely to deter him from committing this and other offences in future”. On 13 December 2010 the Administrative Court quashed that decision due to errors of law regarding the scope of the case and the fine. On 6 April 2011 the Commission discontinued the proceedings on account of the absolute time-bar resulting from the expiry of the five-year limitation period for the offence in question. It also ordered that the car be returned to the applicant under section 268 of the Customs Act (see paragraph 14 below). In October 2011 the Agency for Confiscated Property (“the Agency”), which had stored the car pending the outcome of the proceedings, returned it to the applicant. 7. In February 2012 the applicant instituted civil proceedings against the Customs Authority, claiming compensation for loss of value of the car, under the general rules of tort provided for in the Obligations Act. In this connection he argued that no responsibility on his part had been established in the misdemeanour proceedings and that the car had been impounded without any legal ground. Following a retrial, on 25 April 2014 the Ohrid Court of First Instance upheld the applicant’s claim and awarded him the equivalent of 10,660 euros, which had been the value of the car at the time of its impounding, as established by an expert. The first-instance court referred to, inter alia, the relevant documentary material from the misdemeanour proceedings providing a chronological outline of all actions taken by the relevant authorities at the time (see paragraphs 5 and 6 above). It also reiterated the reasoning in the decisions given in those proceedings. It held that the actions that had been taken by the Customs Authority in the misdemeanour proceedings brought against the applicant on account of the alleged customs-related administrative offence had been in accordance with the law. However, the Customs Authority had not conducted itself diligently in those proceedings and had allowed the statute of limitations to expire. Accordingly, it had been responsible for the inordinate length of the proceedings and the consequential loss of value of the car. The court dismissed the defendant’s arguments that the applicant had been liable for the alleged administrative offence, holding that no guilt had been established in the misdemeanour proceedings, the latter having been discontinued because the statute of limitations had expired. 8. On 6 October 2014 the Bitola Court of Appeal overturned that judgment, finding that the lower court had wrongly applied the substantive law on the established facts. It dismissed the applicant’s compensation claim and stated, inter alia:
“The misdemeanour proceedings against the plaintiff were not discontinued because the offence had not been committed, but because of the absolute time-bar. It cannot be said that there was any unlawful conduct or that the plaintiff’s car was impounded without a legal basis such that the plaintiff’s claim should be upheld and the defendant ordered to compensate for the damage. The plaintiff was required to declare the car to the Customs Office and he knew that he had been driving it with fake number plates, which was the basis for the proceedings against him.”
9. The applicant challenged that judgment by means of an appeal on points of law in which he complained, inter alia, that the Court of Appeal had violated his right to the presumption of innocence. In this connection he reiterated that the misdemeanour proceedings had been discontinued and that no liability on his part had been established. The applicant further submitted that the Court of Appeal was not competent to assess whether the plaintiff had been required to report the car, since that court decided in civil and not misdemeanour proceedings and only the competent body could establish whether or not an administrative offence had been committed. 10. On 3 February 2016 the Supreme Court dismissed the applicant’s appeal on points of law. The relevant parts of its judgment read as follows:
“... no responsibility can be attributed to the defendant for the damage to the car ... because the defendant was bound by law to report an administrative offence as specified in the Customs Act and to institute misdemeanour proceedings against the perpetrator, now the plaintiff (против сторителот, сега тужител). That the misdemeanour proceedings were conducted so that relevant facts ... could be established ... cannot amount to unlawful conduct ... Accordingly, no responsibility can be attributed to the defendant for the damage alleged by the plaintiff.
[The applicant’s complaint] that the defendant had kept the car without legal grounds because the [misdemeanour] proceedings against him had been discontinued and no liability had been established, and that the defendant is therefore responsible for the damage to it, is ill-founded. This is because the proceedings against the plaintiff were not discontinued because it had not been established that he had committed the offence, but because of the absolute time-bar, after which the car was returned to him. It is unsubstantiated that the defendant was not diligent and allowed the car to be damaged or caused the misdemeanour proceedings to be protracted ... In the present case, [the police] impounded the car and ... handed it over to the Agency. Accordingly, the car was not kept at the defendant’s premises and it cannot be held responsible for having been inattentive or careless. Furthermore, on 10 December 2009 the Commission found the plaintiff liable for a customs-related administrative offence ... [The] judgment of 13 December 2010 [of] the Administrative Court ... was served on the Commission on 4 January 2011, that is, five days after the statute of limitations had expired ..., which means that the defendant did not cause any delays in the proceedings ...”
RELEVANT LEGAL FRAMEWORK
Customs Act
11. Under section 206(1)(5) of the Customs Act, as in force at the relevant time, a fine was to be imposed on a physical person who had failed to declare goods to the customs authorities. 12. Section 207 of the Act provided for the liability of a mala fide possessor of goods (одговорност на недобронамерен поседувач-имател на предмети со кои е сторен прекршок) who would, inter alia, buy, sell, obtain as a gift, keep, use or acquire title to those goods even though he or she knew or ought to have known that an administrative offence had been committed, inter alia under section 206 of the Customs Act. 13. Section 208 of the Act provided for the mandatory confiscation of goods used for committing the offences specified in sections 206(1)(5) and 207 of the Act. 14. Under section 268 of the Customs Act of 2005, goods or means of transport used for committing an administrative offence were to be seized, even if no misdemeanour proceedings could be conducted against the perpetrator because his or her identity or whereabouts could not be established or for any other statutory reasons, unless the statute of limitations had expired. MISDEMEANOR ACT OF 2006
15. Section 2 of the Misdemeanour Act provided that the general rules specified in the Criminal Code applied, mutatis mutandis, to misdemeanours and liability for them. 16. Under section 71, an accused (обвинет), within the meaning of the law, was defined as any physical or legal person subject to misdemeanour proceedings. Identical provisions are found in the Misdemeanour Act of 2019. CRIMINAL PROCEEDINGS ACT
17. Under section 21 of the Criminal Proceedings Act, an accused (обвинет) is defined as a person against whom, inter alia, an indictment or private criminal complaint has been lodged. THE LAW
        ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
18. The applicant complained that the reasoning provided by the higher civil courts had violated his right to the presumption of innocence. He relied on Article 6 § 2 of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
Admissibility
Compatibility ratione materiae
(a)   The parties’ submissions
19. The Government submitted that Article 6 § 2 of the Convention did not apply to the compensation proceedings, which had been civil in nature. Furthermore, the prior misdemeanour proceedings could not be regarded as “criminal” within the meaning of that Article. They had been instituted under the Customs Act and conducted, under the procedural rules for administrative offences, by the Customs Authority and the Administrative Court. In those proceedings, unlike those in criminal cases, prison sentences could not be imposed; administrative offences, including customs-related offences, concerned minor violations of public order and were governed by administrative law; the perpetrator of an administrative offence was not considered to be “convicted of a criminal offence”. 20. In any event there had been no causal link between the two proceedings. The compensation proceedings had been independent of, and had occurred after, the misdemeanour proceedings. They had required a specific legal assessment based on criteria and evidential standards that were different from those in the misdemeanour proceedings. That the civil courts had relied, inter alia, on the evidential material from the misdemeanour proceedings was not decisive. The outcome of the misdemeanour proceedings had had no bearing on their findings, which had been confined to the issue whether the impounding of the car, a mandatory security measure, had been ill-founded (неосновано). 21. The applicant submitted that the misdemeanour proceedings should be regarded as “criminal”. This followed from the domestic legislation (see paragraphs 15-17 above) and the punitive nature of penalties imposed on the “accused” in both misdemeanour and criminal proceedings. Furthermore, the civil proceedings in the present case had been closely linked to the prior misdemeanour proceedings. After the latter had been discontinued, the applicant had become entitled to claim compensation for loss of the value of the car impounded in those proceedings. The civil courts had accepted jurisdiction to give a decision on that claim, but they had dismissed it on the merits. (b)   The Court’s assessment
22. The general principles concerning the applicability of Article 6 § 2 are set out in Allen v. the United Kingdom ([GC] no. 25424/09, §§ 92-94, 103 and 104, ECHR 2013). 23. The present case concerns allegations that the judicial decisions given in the compensation proceedings violated the right guaranteed by Article 6 § 2 of the Convention. It has not been argued that those proceedings gave rise to a “criminal charge”, within the autonomous meaning of the Convention. Accordingly, what comes into play is the second aspect of Article 6 § 2 of the Convention, the role of which is to prevent the principle of the presumption of innocence from being undermined after prior criminal proceedings have ended with an outcome other than a conviction. 24. Having regard to the Government’s objections (see paragraph 19 above), the Court firstly has to determine whether the offence with which the applicant was charged in the misdemeanour proceedings was “criminal” within the meaning of that Article. In so doing, the Court will have regard to the three alternative criteria laid down in Engel and Others v. the Netherlands (8 June 1976, § 82, Series A no. 22; see also Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006‑XIV; and Gestur Jónsson and Ragnar Halldór Hall v. Iceland [GC], nos. 68273/14 and 68271/14, § 75, 22 December 2020): (a) the classification of the offence under the domestic law, (b) the nature of the offence, and (c) the nature and degree of severity of the penalty that the person concerned risks incurring. 25. As to the legal classification of the offence under the domestic law, the Court notes that the alleged offence was formally classified as an administrative rather than a criminal offence under the national law. This follows from the fact that it was provided for in sections 206 and 207 of the Customs Act (see paragraphs 11 and 12 above) and not in the Criminal Code. Furthermore, as argued by the Government and not disputed by the applicant, the potential penalty (a fine) would not have been entered in the applicant’s criminal record. However, since the classification of the offence under the domestic law is of relative value only, the Court must further examine the offence in question in the light of the second and third Engel criteria (see the previous paragraph). 26. As to the nature of the offence in question, the Court reiterates that it was defined in the Customs Act, that is, in legislation that applied to the whole population (to anyone suspected of being engaged in the particular behaviour referred to therein) and not just to a particular group. What is more, the potential fine that could have been imposed was, as argued by the applicant and confirmed in the misdemeanour proceedings, punitive in nature as it was not intended to serve as pecuniary compensation for unpaid customs duties, but as a penalty to deter reoffending (see paragraphs 6 and 21 above). The Government did not provide any counter-arguments. The Court finds these elements sufficient for a conclusion that the purported customs-related administrative offence was of a criminal character and thus attracted the guarantees of Article 6 of the Convention (see, mutatis mutandis, Žaja v. Croatia, no. 37462/09, §§ 87 and 88, 4 October 2016). 27. The Court furthermore has to examine whether there was a link between the misdemeanour proceedings and the civil proceedings which ended in the Supreme Court’s judgment of 3 February 2016. In this connection it notes that, in the context of the misdemeanour proceedings against the applicant, on 13 January 2006 the authorities impounded the car and kept it until after the Commission had discontinued the proceedings and had ordered the car to be returned to the applicant (see paragraphs 5 and 6 above). The applicant’s subsequent compensation claim concerned the loss of value of the car kept by the authorities pending the misdemeanour proceedings. In the adjudication of that claim, the civil courts referred to the procedural developments during the misdemeanour proceedings and analysed their eventual impact on the applicant’s claim for loss of value of the car. Relying on the evidence and judgments in the misdemeanour proceedings, as well as on evidence submitted in the civil proceedings, the first-instance court upheld the applicant’s claim and ordered the Customs Authority to pay him an amount equal to the value of the car at the time of its impounding (see paragraph 7 above). On the facts established by the first-instance court, the higher courts dismissed the applicant’s claim, finding that no responsibility could be attributed to the defendant for the damage to the car. In doing so, they referred to the outcome of the prior misdemeanour proceedings and commented on the applicant’s eventual participation in the events leading to the charge brought against him (see paragraphs 8 and 10 above). The Court is therefore satisfied that the civil proceedings were linked to the prior misdemeanour proceedings (see Allen, cited above, § 104). It will revert to these issues in the analysis of the merits of the applicant’s complaint (see paragraphs 33-36 below).
28.

Outcome for Article 6: no_violation