CASE OF VIKTOR KONOVALOV v. RUSSIA
Violation of P1-1
Christos Rozakis
6. The applicant was born in 1957 and lives in Moscow. 7. On 19 March 1999, while travelling with his family to Ukraine, the applicant was stopped in the Moscow Region by officers of the road police. The police discovered that the applicant's car had been brought into Russia on 8 January 1999 and that customs had authorised its circulation on Russian territory for two months only. On the same day the Podolsk Customs Office seized the applicant's car as the object of a breach of customs regulations. 8. On 23 March 1999 the Podolsk Customs Office opened a case against the applicant for failure to take the vehicle out of the customs territory of the Russian Federation within the established time-limit, this being an administrative offence under Article 271 § 1 of the Customs Code. 9. On 23 July 1999 an expert identified the applicant's car as a Peugeot 305 having a depreciated value of 9,858 Russian roubles (RUR). 10. On 30 July 1999 the customs authorities found the applicant guilty of a breach of Article 271 § 1 of the Customs Code and imposed a fine equal to the car's value. The fine was payable within fifteen days of receipt of the decision or, if an appeal was lodged, within fifteen days of the final decision on the appeal. 11. On 11 August 1999 the Moscow Customs Directorate rejected the applicant's appeal against the decision of 30 July 1999. An appeal to a court lay against such a refusal. 12. On 21 August 1999 the applicant lodged an appeal with the Meshchanskiy District Court of Moscow. According to the applicant, the Podolsk Post Office confirmed that on 31 August 1999 a copy of the complaint had been delivered to the Podolsk Customs Office. 13. On 25 August 1999 the customs office forwarded the decision of 30 July 1999 to the bailiffs' service for enforcement through the sale of the car. The applicant was not informed of this. 14. On 17 September 1999 the bailiff commissioned a private company to organise the sale of the car. 15. After several reductions of the sale price, on 15 December 1999 the car was sold for RUR 3,000. 16. On 14 April 2000 the Meshchanskiy District Court heard the appeal. It found that the existence of a breach was not disputed by the parties and that the decision imposing the fine had not become time-barred. The court dismissed the complaint. 17. On 10 August 2000 the Moscow City Court upheld, on the applicant's appeal, the judgment of 14 April 2000. 18. The applicant complained to a prosecutor's office that the sale of his car had been unlawful as it was effected at the time when his appeal against the customs office's decision was pending. 19. On 24 May 2001 the South-Western transport prosecutor's office sent a letter to the head of the Podolsk Customs Office. A deputy prosecutor determined that the decision of 30 July 1999 had been enforced in breach of the Customs Code. Having received, on 24 September 1999, a copy of the applicant's appeal to a court, the Podolsk Customs Office had not forwarded that information to the bailiff or suspended the enforcement proceedings. The deputy prosecutor recommended that similar violations be avoided in the future, yet in the applicant's case he refused to take action because “the State interests had not been harmed”. 20. The applicant complained to a court about the bailiff's acts. He submitted, in particular, that he had not been notified of the opening of the enforcement proceedings or informed about the reduction of the sale price and that the car had been sold outside the two-month time-limit. 21. On 14 June 2001 the Podolsk Town Court of the Moscow Region gave judgment. It found that the representative of the Podolsk bailiffs' service could not show that the applicant had been notified of the enforcement proceedings and price reduction. Nor could he explain what actions had been undertaken by the bailiff to identify the applicant's sources of income or other property and why the car had not been offered to the creditor upon expiry of the two-month time-limit but instead had been sold three months later. The court noted that the enforcement file contained the report on the impossibility of enforcement dated 21 December 1999, but the documents on which the act had been founded were missing. The court made a declaratory judgment that the enforcement procedure had been carried out in breach of the Enforcement Act. 22. The applicant also lodged a complaint against the Podolsk Customs Office. He submitted, in particular, that the office had failed to suspend the enforcement proceedings pending the outcome of his complaint to a court. 23. On 12 March 2002 the Podolsk Town Court of the Moscow Region dismissed the complaint. As regards the allegedly premature transfer of the car to the bailiffs, the court held as follows: “The car taken from [the applicant] was a piece of evidence that, pursuant to Article 327 of the Customs Code, was to be kept until the time-limit for lodging an appeal against the decision of the customs office... had expired or until a higher customs office or a district/town court had given a decision... The car was handed over for sale to the court bailiffs after the higher customs office had replied to [the applicant's] complaint; [the applicant] did not show that, before the handover of the car had been effected, he had informed the Podolsk Customs Office of his having lodged a complaint with a court; an acknowledgement-of-receipt coupon on p. 100 of the case file is not evidence of appropriate notification because [the text of] the notification is missing ...” 24. On 30 May 2002 the Moscow Regional Court, on the applicant's appeal, upheld the judgment of 12 March 2002. 25. The applicant sued the Moscow Region Directorate of the Ministry of Justice, the authority in charge of court bailiffs, for pecuniary and non-pecuniary damage caused by the court bailiff. 26. On 27 February 2003 a Justice of the Peace of the 13th Court Circuit of the Zyuzino District of Moscow granted the applicant's claims in part. He determined that the applicant's car had been billed for sale on 17 September 1999 and that the price had been reduced on 6 October, 19 October, 2 November and 8 December 1999. On 15 December 1999 it had been sold for RUR 3,000. The court found that, in breach of the requirement of the Enforcement Act, the applicant had not been informed of the enforcement proceedings, the bailiff had not attempted to identify his other assets or money, the creditor had not been offered to keep the car or to contest the sale price of the car. The court noted the decision of the Podolsk prosecutor's office of 22 October 2002 whereby criminal proceedings against the court bailiff were discontinued. The decision established that the bailiff might have been guilty of professional negligence (Article 293 § 1 of the Criminal Code), but prosecution was time-barred. The court ruled that there was a causal link between the bailiff's unlawful actions and the pecuniary damage caused to the applicant, and ordered the Ministry of Justice, as the bailiff's employer, to reimburse RUR 6,858 to the applicant (the difference between the car's valuation and sale price) and to pay RUR 500 in respect of non-pecuniary damage, RUR 2,000 for legal costs and also to bear court fees. 27. On 25 December 2003 the Zyuzinskiy District Court of Moscow quashed, on an appeal from the Ministry of Justice, the judgment of 27 February 2003. The court held that the applicant had failed to prove that the bailiff's actions had caused him pecuniary or non-pecuniary damage and the violations committed by the bailiff had been of “a procedural nature”. 28. The Customs Code, as in force at the material time, provides in relevant part as follows. A breach of customs regulations is punishable by, in particular, forfeiture of the goods or vehicles that were the object of the offence, or payment of a fine equal to their value (Article 242 §§ 4 and 5). 29. Physical evidence includes the goods and vehicles that were the objects of a violation of the customs regulations. Such evidence is kept in the warehouse until the time-limit for lodging an appeal has expired or the appeal has been decided upon by the higher customs office or a court (Article 327). 30. The goods and vehicles that were the object of a violation of the customs regulations will be seized. If the person who is found liable for a violation of customs regulations has no permanent residence in Russia, his goods, money or vehicle may be seized as security for payment of the fine (Article 337). 31. The order on payment of a fine may be enforced by the customs office after the time-limit for lodging an appeal has expired (Article 378). The lodging of an appeal shall suspend enforcement (Article 376). The fine is payable within fifteen days after the final decision refusing the appeal against the order was issued. If the fine has not been paid within this time-limit, it may be recovered from the goods charged as security for the payment or from the person's other assets or income (Article 379). 32. The Enforcement Act provides in relevant part as follows. A copy of the decision on the opening of enforcement proceedings must be sent to the debtor within one day of issue (section 9 § 4). The creditor and the debtor are the parties to the enforcement proceedings (section 29 § 1). 33. Recovery may be made out of the debtor's property if the debtor does not have sufficient cash funds in Russian roubles or foreign currency (section 46). 34. Property subject to a charge may be sold within two months of the date of the charge order. If the property has not been sold within two months, the creditor will have the right to keep the property. If the creditor refuses, the property is returned to the debtor and the writ of enforcement to the creditor (section 54).