MATACHE-GONU v. ROMANIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Iosif Liviu Matache-Gonu, is a Romanian national, who was born in 1964 and lives in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Mr R.-H. Radu, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 16 May 2003 the applicant took to Romania a car he had bought in Germany and for which he had paid 9,650 euros (EUR). An initial customs declaration was filled in on that date at the Romanian border. 5. Subsequently, at his place of residence the applicant started the process of registering the car. On 20 May 2003 the registration office informed him that the car could be registered only if it passed a technical roadworthiness test. 6. On 22 May 2003 the Bucharest Customs Office issued a primary customs declaration attesting that until it had been further clarified whether the car could be registered in Romania or not, it would have the status of goods in transit. 7. Both customs declarations were filled in on behalf of the applicant by companies specialised in providing customs services. The companies’ names were recorded as the person declaring the goods, while the applicant’s name was recorded under the section “recipient of the goods”. 8. On 23 May 2003, while the car was still in customs transit, the applicant sold it to D.D. He alleged that the car could not be registered in Romania as it was not environmentally friendly and did not fulfil certain technical criteria required by law. On the same day D.D. tried to take the car to the Republic of Moldova, but was prevented from doing so by Romanian border guards on the grounds that the car was still “in transit” and had not been cleared for export. 9. On 26 May 2003, in the presence of the applicant, a customs officer drew up a report for the offence of selling goods while in customs transit. The applicant was fined 25,000,000 lei (ROL) and the car was confiscated in accordance with Article 386 (f) of the Instructions for the Application of the Romanian Customs Code (IARCC). The applicant signed the offence report without written comments. 10. On 18 June 2003 the Râmnicu-Vâlcea District Court allowed an action lodged by the applicant and annulled the car sale contract concluded between him and D.D. on the grounds that D.D. had not paid the full price agreed. The court also mentioned that the advance of ROL 10,000,000 had been returned to D.D. 11. The applicant contested the offence report before the courts, seeking annulment of the fine and the return of the car. He claimed that only D.D. should have been fined, since he had been the owner of the car when the report had been drawn up. On 14 July 2003 the Târgu Bujor District Court rejected the applicant’s action on the grounds that he had committed the offence of selling a car in customs transit, in contravention of Article 386 (f) of the IARCC. The court held that both the fine and the confiscation of the car were prescribed by law in order to prevent fiscal fraud. 12. The applicant appealed against the decision, claiming that, since the sale contract had been annulled by a final judgment, the offence no longer existed. 13. On 12 January 2004 the Galaţi County Court analysed the applicant’s allegations and concluded that the annulment of the sale contract subsequent to the discovery of the offence by the customs authorities did not infer that the offence no longer existed or had not been committed. The court further examined whether the offence report fulfilled the formal requirements and finally decided to uphold the first-instance court’s decision. 14. On 19 February 2004 the National Customs Agency informed the applicant that following the final court judgment of 12 January 2004, he had no further legal grounds for requesting the return of his car. 15. The relevant parts of the Customs Code in force at the material time read as follows: “The procedure for recording and penalising an act which is an offence under the customs regulations is established by the Instructions for the Application of the Romanian Customs Code approved by Governmental Decision.” “1. Customs authorities shall record and penalise customs offences which are committed within the area of surveillance of customs operations .... 3. After verifying the existence of an offence under the customs regulations, the customs authorities shall apply fines and confiscate goods, where applicable.” 16. The relevant part of the Instructions for the Application of the Romanian Customs Code, approved by Governmental Decision No. 1114 of 2001, reads as follows: “The following acts are customs offences and are punishable by fines of between 25,000,000 lei and 75,000,000 lei: ... (f) the alienation under any circumstances of goods during customs transit. The alienated goods will be confiscated”.