CASE OF HARALAMBIDIS AND OTHERS v. GREECE
Preliminary objection allowed (six months period)
András Baka
8. The first applicant used to be president of the board of directors and managing director of the first applicant company and manager of the second applicant company. The first applicant company, the full title of which is Yeoryios Haralambidis - Liberpa, Greek Corporation of International Transports and General Enterprises S.A. (ανώνυμος εταιρία), was incorporated under Greek law. It was set up in 1973. The second applicant company, the full title of which is Liberpa International Road Transports Ltd (εταιρία περιορισμένης ευθύνης), was also incorporated under Greek law. It was set up in 1974. 9. Between June 1980 and March 1981 the second applicant company transported cloth from outside the European Community into Greece and then to Italy. A few months later the customs authorities, suspecting that criminal offences had been committed in the course of this activity, asked for and were granted leave from the local public prosecutor to start a preliminary inquiry. 10. On 31 August 1982 and 8 August 1983 criminal proceedings were instituted against the first applicant and others for contraband, forgery and fraud against the State. The first applicant was in essence charged with bringing the cloth into Greece as goods in transit for Jordan and then changing its origin by using forged documents in order “to export” it to Italy as Greek and avoid paying customs duties. The first applicant company appeared as the Greek “exporter” of the cloth. 11. On 15 June 1984 and 22 June 1984 the customs authorities of Piraeus, considering that the first applicant in his capacity as representative of the two applicant companies had committed the customs offence of contraband, decided to impose on him fines of a total amount of 59,099,404 drachmas. Fines of a total amount of 11,738,867 drachmas were also imposed on Mr K, an employee of the second applicant company and Mr Tz, a customs broker. The customs authorities also decided that customs duties of a total amount of 21,208,456 drachmas were due for the importation of the cloth in Greece. The first applicant as representative of the two applicant companies was to be jointly and severally liable for the payment of the fines imposed on Messrs K and Tz and of the customs duties (decisions Nos. 3/83/15.6.84 and 1-5/22.6.84). The duties and fines in question were to be recovered in accordance with the Code for the Collection of Public Revenues. 12. The first applicant and the two applicant companies immediately lodged appeals (προσφυγές) in the Administrative Court (Διοικητικό Πρωτοδικείο) of Pireaus. The court requested the competent administrative authorities to compile a case-file, which they did on 15 July 1985. 13. The applicants then tried unsuccessfully to obtain various documents concerning the transport of the cloth in question from the customs authorities. 14. On 17 May 1985 the first applicant addressed himself to the investigating judge of Piraeus asking for his assistance in this matter. The investigating judge asked the customs authorities of Pireaus to provide the documents in question. On 20 May 1985 the authorities replied that some could not be found (VOLET 2 of TIR 0413929) while others did not concern the applicants (application for a reloading permit No 973). However, the applicants had already received a letter dated 15 May 1985 from the customs authorities of Evzones to the effect that the Evzones authorities had sent to the Piraeus authorities some of the documents that the Piraeus authorities could not find. 15. In the meantime the indictments chamber of the first instance criminal court (Συμβούλιο Πλημμελειοδικών) of Piraeus decided that the first applicant should be tried by the three-member Court of Appeal (Τριμελές Εφετείο) of Piraeus, sitting as a first instance court, for forgery and fraud and by the three-member first instance criminal court (Τριμελές Πλημμελειοδικείο) of Piraeus for contraband. Mr K and two others were indicted as well. The applicant and his co-accused appealed. 16. On 25 October 1985 the indictments chamber of the Court of Appeal (Συμβούλιο Εφετών) of Piraeus decided that the applicant and the others could not be tried for contraband because the cloth in question had technically never been imported into or exported from Greece. Greece had never been its destination, it had been brought into Greece in transit and had eventually left Greece for Italy. As a result, no customs duties were due to the Greek authorities and the crime of contraband could not have been committed. Nevertheless, the chamber decided that the applicant and his coaccused should be tried for forgery and fraud. 17. The trial commenced on 7 October 1987. The applicant testified, inter alia, that “he had gone to the customs office in Prato, Italy to ask for the documents but was told that he lacked locus standi and the matter was internal”. On 8 October 1987 the three-member Court of Appeal decided to adjourn the trial in order to obtain expert evidence on the question of forgery. 18. In November 1987 there was a fire on the premises of the first instance Administrative Court of Pireaus, which, as a result, had to be relocated. 19. The applicants' appeals against the decisions of 15 June 1984 and 22 June 1984 of the customs authorities of Piraeus imposing customs duties and fines were heard on 20 June 1988, 21 November 1988 and 12 April 1989. 20. On 12 September 1988, 18 January 1989 and 31 May 1989 the threemember first instance Administrative Court (Τριμελές Διοικητικό Πρωτοδικείο) of Piraeus quashed the decisions of 15 June 1984 and 22 June 1984 of the customs authorities of Piraeus. The court considered that the first applicant had not committed the customs offence of contraband because the cloth had entered into Greece in transit and no customs duties were due to the Greek authorities. Moreover, the intention of the applicant was to defraud the Italian authorities and not to deprive the Greek authorities of income due (decisions Nos. 1534/88, 1535/88, 76/89, 77/89, 1360/89 and 1361/89). The customs authorities appealed. 21. On 6 October 1989 the third applicant company closed down its operations. 22. On 30 December 1989 the three-member Court of Appeal of Piraeus acquitted the applicant of the forgery and fraud charges. 23. On 30 September 1991 the five-member Administrative Court of Appeal (Πενταμελές Διοικητικό Εφετείο) of Piraeus, by majority, decided to uphold the customs authorities' appeal. The court considered that the effect of the first applicant's and his collaborators' actions was to change the origin of the cloth into Greek. As a result, the cloth had technically been imported into Greece. However, no customs duties had been paid and, as a result, the customs offence of contraband had been committed. The court, however, reduced the amount of the fines to be paid by the first applicant in his capacity as representative of the two applicant companies to 40,282,648 drachmas and the global fine for which the first applicant was jointly and severally liable to 48,197,414 drachmas. One judge disagreed. He considered that the contraband offence had not been committed and referred to the findings of the criminal court of appeal (decisions Nos. 1833/95, 1834/91, 1835/91, 1836/91, 1837/91 and 1838/91). 24. The first applicant and the two applicant companies appealed in cassation to the Council of State (Συμβούλιο της Επικρατείας). 25. The appeals were set for hearing by the Second Chamber of the Council of State on 26 January 1994. 26. In the meantime, on 24 June 1992, the Council of State issued decision No. 2313/92 on an appeal in cassation by the applicants concerning a fine imposed by the customs authorities on another occasion. Two of the applicants appealed against decision No. 2313/92 before the Special Supreme Court (Ανώτατο Ειδικό Δικαστήριο) on the ground that in another case the Court of Cassation (Αρειος Πάγος) had interpreted the Customs Code in a different manner. 27. On 22 June 1993 the customs authorities ordered that the first applicant should not be allowed to travel out of Greece, because of his debts to the State. 28. On 26 July 1993 the first applicant requested the public prosecutor of Piraeus to order the customs authorities to give him certain documents. The prosecutor transmitted the applicant's request to the customs authorities of Piraeus, which complied. Among the documents provided by the customs authorities were the VOLETS 2 of TIR 438216 and TIR 8630463 that the applicants had requested in 1985. 29. In 1993 the applicant also obtained certain documents concerning the transport of the cloth in question from the Italian authorities. 30. On 16 December 1993 the applicants added to their grounds of appeal in cassation the following: The Greek customs authorities had given the wrong classification to the cloth in question. As a result, the applicants had been asked to pay higher duties and fines. The applicants had been able to establish the wrong classification of the cloth on the basis of documents they had obtained from the Italian authorities. It was the correspondence exchanged between the Greek and the Italian authorities that had made the applicants realise that it was necessary to contact the latter. The applicants had had access to the correspondence in question for the first time in 1993 following the intervention of the public prosecutor of Piraeus. If the applicants had had this information earlier they would have been able to include a relevant ground in their appeal to the first instance Administrative Court of Piraeus. Moreover, the Court of Appeal had not examined the applicants' submission that the goods in question had been given a wrong classification by the customs authorities and that the customs duties had been calculated wrongly. 31. On 30 August 1994, due to a change in the legislation, the applicants' appeals in cassation were transferred from the Second to the Sixth Chamber of the Council of State. A hearing was set for 13 February 1995, when it was adjourned until 19 June 1995. 32. On 31 May 1995 the Special Supreme Court rejected the appeal by two of the applicants against the Council of State's decision No. 2313/92. 33 34. The applicants have claimed that the text of the decisions of the Council of State was “finalised” (καθαρογραφή) on 9 December 1996. However, the Government produced a certificate issued by the Registry of the Council of State on 17 May 2000, whereby it is attested that the relevant judgments were finalised on 25 June 1996, certified (θεώρηση) on 27 June 1996 and signed (υπογραφή) on 1st July 1996. 35. Following the decision of the Council of State the first applicant company paid the sums specified in the decisions of the administrative court of appeal plus interest and default penalties as from the date of these decisions. The applicant company claims that it paid 188,222,039 drachmas in total. The Government claim that the company took advantage of the salutary provisions of law No. 2443/96 and only paid 130,424,579 drachmas.