LOZHKIN v. RUSSIA
Inadmissible
Peer Lorenzen
The applicant, Mr Konstantin Vladimirovich Lozhkin, is a Russian national who was born in 1971 and lives in the town of Kandalaksha in the Murmansk Region. He was represented before the Court by Mr A. Kovalev, a lawyer practising in Murmansk. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 1998 the applicant decided to purchase a car in the Republic of Belarus. According to the applicant, he applied to the Kandalaksha Customs Office (Кандалакшская таможня, “the Customs Office”) for information concerning the applicable customs regulations and fees and was informed that the customs border between the two states had ceased to exist, customs restrictions had been abolished, and therefore the Russian customs authorities no longer collected duties in respect of motor vehicles imported from Belarus into Russia. On 26 October 1998 the applicant purchased a second-hand German car in the Republic of Belarus. On 2 November 1998 he brought the vehicle into Russia and passed through customs control in the Customs Office without being required to pay any duties. The inspector in charge stamped the invoice for the purchase of the car to indicate that the customs formalities had been accomplished and no customs clearance was needed. On 16 January 1999 the State Road Traffic Inspectorate registered the applicant’s vehicle. On 27 October 1999 the Customs Office informed the applicant that he had failed to comply with clearance requirements when he imported his motor vehicle into Russia and had to present his car to the Customs Office before 30 November 1999 to obtain clearance. By a letter of 30 November 1999 the Customs Office notified the applicant that he had failed to pay customs duties and other related taxes on his imported car totalling RUR 27,111.46 (approximately EUR 1,000) in time. In the same letter it required the applicant to pay a daily penalty (пеня) for the delay in the payment of the above sum starting from the date on which the vehicle had entered Russia. The penalty amounted to RUR 16,339.17 (approximately EUR 600) and continued to accrue. The sums were payable before 20 December 1999. The applicant refused to comply with these decisions and challenged the above order before the director of the Customs Office. By a letter of 16 December 1999 one of the deputy directors of the Customs Office informed the applicant that an investigation had been started into the alleged failure of an unidentified person to make a proper declaration in respect of a motor vehicle that had been imported from Belarus into Russia and registered by the State Road Traffic Inspectorate on 16 January 1999. The investigation established that the car in question had been purchased by the applicant, who had then applied for its registration. The applicant had allegedly repeatedly been summoned as a witness but had failed to appear. The letter further stated: “... it is true that the papers on the car which you have imported contain checks by the Kandalaksha Customs Office – a stamp stating ‘customs control accomplished; customs clearance not required’, signed by a customs officer and sealed with his personal stamp. Yet the vehicle is not registered at the customs registry [and] the customs control has not, in fact, been performed. According to the directive issued by the State Customs Committee of the Russian Federation on 28 November 1996 ..., a customs control cannot be finalised unless there is proof of the transfer of customs duties and other taxes collected in Belarus to the federal budget of the Russian Federation. The customs officer sent no such request to the Belarusian authorities and, accordingly, such proof is missing. The customs officer, who checked and stamped your documents did, therefore mislead you ... and will take responsibility for this. However, this does not absolve you of the obligation to clear duly the motor vehicle through customs in the proper manner. As you failed to produce the vehicle within the fixed time-limit and did not perform the customs clearance in the Kandalaksha Customs Office in compliance with [our] orders of 19 October 1999 and 27 October 1999, administrative proceedings for breach of customs regulations have been brought against you ...” The applicant stated that he had never received the order of 19 October 1999 and that he had attended the Customs Office once, on receipt of the first summons. The applicant challenged the decision of the Kandalaksha Customs Office concerning the imposition of the duties and a fine in court. On 14 February 2000 the Kandalaksha Town Court of the Murmansk Region (Кандалакшский городской суд Мурманской области) gave a judgment in the applicant’s favour. It found that the applicant’s vehicle pertained to a category of goods originating in a third country that had been duly released into free circulation on the territory of Belarus. It then had regard to Decree no. 525 issued by the President of Russia on 25 May 1995, the resolution of the Government of Russia no. 583 of 23 June 1995, Directive no. 01-14/1310 issued by the State Customs Committee on 28 November 1996 and other relevant instruments (see the “Relevant domestic law”) and held that they had abolished customs control and customs clearance in respect of the said category of goods. The court rejected the defendant’s argument that the requirement to pay the customs duties in the present case was justified by the fact that the implementation of the customs union between the two states was not yet complete. With respect to the defendant’s argument that the applicant had failed to present the necessary documents when passing through customs control as prescribed by the directive of the State Customs Committee of 28 November 1996, the court noted that the directive in question was unclear and the Kandalaksha Customs Office had misconstrued it. The court concluded that the applicant was, therefore, exempt from the customs duties and other fees and that the customs authorities’ order was unlawful. On 6 September 2000, on an appeal by the Kandalaksha Customs Office, the Murmansk Regional Court quashed the above judgment and substituted its own decision. It agreed with the finding of the court below that the applicant’s car had originated in a third country and been duly released in Belarus, and the applicant had properly declared it and passed through customs control in Russia. However, the Regional Court considered that the Town Court had erred in law in holding that the category of goods to which the applicant’s car belonged was unconditionally exempt from customs clearance. It referred to the incomplete implementation of the customs union and the applicant’s failure to produce the documents required by the aforementioned directive of the State Customs Committee and ruled that the claims of the Kandalaksha Customs Office were well-founded. It accordingly dismissed the applicant’s complaint. On an unspecified date the Customs Office brought a court action against the applicant for the recovery of the amounts due in respect of the customs duties and surcharges. On 25 December 2000 the Town Court granted its claims in part. It noted that the court decision of 6 September 2000 was res judicata in the applicant’s case and therefore the applicant was under an obligation to pay the customs duties amounting to RUR 26,724.29 (approximately EUR 760). However, it absolved the applicant of payment of the surcharges after noting that his failure to pay the customs duties in time had been due to the general uncertainty and ambiguity of the regulations governing the import of goods from Belarus to Russia. On 11 April 2001 the Regional Court upheld the first instance judgment on appeal. According to the applicant, he had to pay the sum due by instalments because of its size. He discharged his obligation in full in November 2003. Article 4 § 1 of the Agreement provides, as follows: “Import customs duties, taxes and contributions of equivalent value on goods originating in a third country shall be levied in the budget of the High Contracting Party which is the country where such goods are consigned.” Article 6 § 2 of the Agreement provides, so far as relevant, as follows: “The Contracting Parties ... shall abolish customs control at the border between them ... provided that reliable customs control is exercised at their external borders”. In line with the Agreement, on 25 May 1995 the President of Russia issued decree no. 525 abolishing customs control at the border between Russia and Belarus. On 23 June 1995 the Government of Russia adopted resolution no. 583 implementing the above decree. In particular, it ordered that the State Customs Committee to abolish customs control and customs clearance at the border between Russia and the Republic of Belarus in respect of, inter alia, goods originating from Belarus or that had been released into free circulation in Belarus. On 28 November 1996 the State Customs Committee of Russia issued directive no. 01-14/1310 exempting goods originating in a third country and duly released into free circulation in the Republic of Belarus from customs duties in Russia. In order to obtain the exemption a document had to be produced proving that the import duties paid to the Belarusian customs authorities had been transferred into the budget of Russia. Failure to provide such proof would result in the imported goods of the said category being subject to customs clearance in Russia.