CASE OF NADTOCHIY v. UKRAINE
Partly inadmissible;Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient
Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova;Volodymyr Butkevych
4. The applicant, Mr Anatoliy Mykolayovych Nadtochiy, is a Ukrainian national who was born in 1977 and resides in the city of Chernigiv, Ukraine. 5. On 21 February 2000 the applicant brought a car (Audi-100) registered in Lithuania into the customs territory of Ukraine. When crossing the border he undertook an obligation to re-export the car before 21 February 2001. 6. On 25 September 2000 the applicant was arrested on suspicion of murder. 7. On 15 December 2000 the applicant was sentenced to eight years’ imprisonment for murder. 8. On 5 June 2002, in the applicant’s absence, the Chernigiv Customs Office drew up a report on an infringement of customs regulations due to the applicant’s failure to bring the above car outside the customs territory of Ukraine (section 113 of the Customs Code). In the report, the Customs Office indicated the applicant’s place of detention. 9. On 17 July 2002 the Customs Office sent the applicant’s case to the Novozavodsky District Court of Chernigiv. In the covering letter they requested the court to consider the issue of the applicant’s liability for a violation of section 112 of the Customs Code (loss of goods placed under customs control). 10. On 12 August 2002 the court considered the case in the applicant’s absence. The court found the applicant guilty of having failed to re-export the car and of having lost it in violation of section 112 of the Customs Code. The court ordered the confiscation of the vehicle, but given that the car’s location was unknown, it replaced the confiscation with payment of UAH 9,833.57 (about EUR 1,525.15) which corresponded to the value of the car, in accordance with section 149 § 3 of the Customs Code. In its decision, the court also indicated the applicant’s actual place of detention and noted that the applicant had not expressed a wish to be present at the court’s hearing, even though a notification about the time and place of the hearing had been sent to him. However, according to an information letter by the Deputy Head of the State Department for Enforcement of Sentences (Державний департамент України з питань виконання покарань) in reply to the Government Agent’s request, the applicant’s prison file contained no evidence that the applicant had received any summons to or notification about the above proceedings, while they were pending. 11. The applicant was informed about the above court decision by the prison administration, which received a copy of the decision on 23 August 2002. 12. On 29 December 2006 the applicant was released on probation. 13. The relevant provisions of the Code read as follows: “The legislation of the USSR and of the Ukrainian SSR on administrative offences consists of ..., this Code and other legislative acts of the Ukrainian SSR and decrees of the Council of Ministers of the Ukrainian SSR on administrative offences...” “(...) administrative liability for infringement of customs regulations shall be governed by the Customs Code ...” “An administrative offence is an unlawful, culpable (intentional or negligent) act or omission, which is prejudicial to the State or public order, property, citizens’ rights and freedoms, [and] established administrative procedures, and for which the law foresees administrative liability...” Administrative liability for the offences provided for by this Code arises in circumstances where no grounds to subject a person to criminal liability can be found.” Section 17. Circumstances that exclude administrative liability “A person who has acted in the case of urgent necessity ... shall not be subject to administrative liability.” Section 29. Confiscation of an item used to commit an administrative offence or one which is the direct subject-matter of such an offence “...Only an item forming part of the private property of the offender can be confiscated, unless the legislative acts of the USSR provide otherwise...” Section 38. Terms for imposing administrative penalties “Administrative penalties (адміністративні стягнення) can be imposed not later than 2 months after the offence has been committed, and in the case of a continuous offence – not later than two months after the offence has been discovered...” Section 268. Rights of a person against whom administrative proceedings have been brought “A person against whom administrative proceedings have been brought shall be entitled to: ... give explanations, present pieces of evidence, make motions... In the absence of the suspected person, the case can be considered only where there is information that he or she has received timely notification about the place and time of the hearing and if he or she has not requested an adjournment of the case...” 14. Part VII of the Code defined smuggling and further referred to the criminal law on liability. The provisions pertinent to the present case are contained in Part VIII of the Code and read, in so far as relevant, as follows: Part VIII Infringement of customs regulations. Proceedings in cases concerning infringement of customs regulations Chapter 1 Infringement of customs regulations and liability for such infringements Section 112 “The giving out of the items under the customs control without the permission of the customs body of Ukraine or the loss thereof shall incur the fine from the citizens in the amount up to a salary minimum, officially established at the date of that infringement, with confiscation of goods in question or without the latter; and from the officials - in the amount from two and a half till ten minimums officially established at the date of that infringement, with confiscation of goods in question or without the latter.” “Failure to re-export items brought into the customs territory of Ukraine on condition of an obligation to re-export them within the established time-limits ... shall result in imposition of a fine ... with confiscation of the items concerned...” Chapter 2. Proceedings in cases concerning infringement of customs regulations “Proceedings concerning infringement of customs regulations shall be conducted in accordance with the provisions of this Code or, where not regulated by it, under the relevant legislation ... on administrative offences (...)” Section 138. Presence of a person against whom administrative proceedings have been brought during consideration of the case concerning infringement of customs regulations. “A case concerning infringement of customs regulations shall be considered in the presence of the person against whom administrative proceedings have been brought. In the of the absence of the person against whom administrative proceedings have been brought, the case may be considered only when there is information about the timely notification of this person about the place and time of consideration of the case, but he or she has not submitted any petition for adjournment of the case or if there is information that at the time of consideration of the case the person is outside the territory of Ukraine, or when the person who committed the infringement of customs regulations has not been established, or in the case of a infringement of customs regulations via the sending of items by international postal correspondence.” Section 139. Terms for imposing administrative penalties “Administrative penalties (адміністративні стягнення) in the form of a warning or fine for infringement of customs regulations may be imposed not later than 2 months after the infringement of customs regulations, and in the case of a continuous infringement not later than two months after the infringement has been discovered... Confiscation of items that have been the direct subject-matter of an infringement of customs regulations ... shall be effected regardless of the time of the commission or discovery of the infringement of customs regulations.” Chapter 3. Execution of decisions of the customs authorities and courts concerning the imposition of an administrative penalty Section 149. Execution of the decision of the court (judge) concerning confiscation. “...If the items ... cannot be confiscated, the pecuniary equivalent of the value of the said items shall be collected from the persons who have infringed the customs regulations ...”