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FIRST
SECTION
CASE OF VIKTOR KONOVALOV v. RUSSIA
(Application
no. 43626/02)
JUDGMENT
STRASBOURG
24 May
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Viktor Konovalov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens, judges,
and Mr S.
Nielsen, Section Registrar,
Having
deliberated in private on 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43626/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Viktor Aleksandrovich
Konovalov (“the applicant”), on 25 November 2002.
- The
applicant was represented before the Court by Mr M. Minayev, a lawyer
practising in Moscow. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that there had been a violation of
his property rights resulting from the procedurally defective sale of
his car.
- By
a decision of 30 August 2005 the Court declared the application
partly admissible.
- The
Government, but not the applicant, filed observations on the merits
(Rule 59 § 1). The Ukrainian Government did not exercise their
right to intervene (Rule 36 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Moscow.
A. Breach of the customs regulations and imposition of
fine
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- On
17 September 1999 the bailiff commissioned a private company to
organise the sale of the car.
- After
several reductions of the sale price, on 15 December 1999 the car was
sold for RUR 3,000.
- 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.
- On
10 August 2000 the Moscow City Court upheld, on the applicant's
appeal, the judgment of 14 April 2000.
B. The applicant's attempts to contest the sale of his
car
1. Complaint to a prosecutor
- 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.
- 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”.
2. Proceedings against the bailiffs' service
- 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.
- 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.
3. Proceedings against the customs office
- 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.
- 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 ...”
- On
30 May 2002 the Moscow Regional Court, on the applicant's appeal,
upheld the judgment of 12 March 2002.
C. Proceedings for compensation
- 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.
- 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.
- 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”.
II. RELEVANT DOMESTIC LAW
A. Customs Code (Law no. 5221-I of 18 June 1993)
- 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).
- 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).
- 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).
- 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).
B. Enforcement Act (Law no. 119-FZ of 21 July 1997)
- 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).
- 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).
- 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).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained under Article 1 of Protocol No. 1 that the sale
of his car had not been effected in accordance with the law. Article
1 of Protocol No. 1 provides as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Submissions by the parties
- The
applicant submitted that he had been deprived of his property without
due process of law. According to the decision of 23 March 1999, his
car was seized as the object of the violation, that is, physical
evidence which had to be returned to the legal owner in accordance
with Article 327 of the Customs Code. No decision on charging the car
as security for payment of the fine had ever been issued. The customs
office must have been aware of the appeal because on 31 August
1999 the post office had delivered a copy of the appeal to customs.
The applicant considered that the procedurally defective sale of the
car on the basis of an unlawful decision of the customs office had
violated his rights under Article 1 of Protocol No. 1.
- The
Government pointed out that the decision to fine the applicant for a
breach of the customs regulations in an amount equal to the value of
his car had been lawful. They acknowledged, however, that there had
been a violation of Article 1 of Protocol No. 1 in that the bailiff
had sold the applicant's car in breach of the requirements of the
Enforcement Act. He had not advised the applicant of the institution
of enforcement proceedings on 30 August 1999 or explained to him the
right to be a party to those proceedings. The enforcement had not
been suspended after the applicant had lodged an appeal with the
Meshchanskiy District Court on 21 August 1999. Furthermore, once
the initial two-month period had expired, the bailiff should have
asked the creditor whether he wanted to keep the car and, if the
creditor was not interested, should have returned it to the lawful
owner but had not done that either. In a judgment of 14 July 2001 the
Podolsk Town Court had acknowledged a breach of the Enforcement Act.
The Government nevertheless claimed that these procedural breaches
could not have affected the applicant's property rights because, in
any event, he had been fined for a breach of customs regulations.
B. The Court's assessment
- Article
1 of Protocol No. 1 comprises three distinct rules: the first rule,
set out in the first sentence of the first paragraph, is of a general
nature and enunciates the principle of the peaceful enjoyment of
property; the second rule, contained in the second sentence of the
first paragraph, covers deprivation of possessions and subjects it to
certain conditions; the third rule, stated in the second paragraph,
recognises that the Contracting States are entitled, inter alia,
to control the use of property in accordance with the general
interest. The three rules are not, however, distinct in the sense of
being unconnected. The second and third rules are concerned with
particular instances of interference with the right to peaceful
enjoyment of property and should therefore be construed in the light
of the general principle enunciated in the first rule (see, as a
recent authority, Broniowski v. Poland [GC],
no. 31443/96, § 134, ECHR 2004 V).
- The
Court observes that the “possession” at issue in the
present case was the car of which the applicant was the lawful owner.
The Court notes that in the application before it the applicant did
not dispute the lawfulness of the fine imposed on him for having
committed a breach of customs regulations. Nor did he contest the
lawfulness of the decision to seize his car as the object of that
breach. The alleged violation of his property rights stemmed not from
those actions by the domestic authorities but rather from the
sequence of later events that ultimately led to the loss of ownership
of the car. Those events included the charging of his car as security
for payment of the fine, the handover of the car to the bailiff for
sale with a view to recovering the fine from the proceeds, and the
applicant's inability to take part in the enforcement proceedings.
- The
Court is not persuaded by the Government's contention that the
breaches of the relevant law committed by the bailiff did not affect
the applicant's property rights because in any event he had to pay a
fine for a breach of customs regulations. That contention is based on
the assumption that the applicant would have lost title to his car
irrespective of the course of enforcement proceedings. The Court
finds that this assumption does not have a sufficient logical and
legal basis. The applicant was required to pay a specific sum of
money to the State equal to the car's value. He was not, however,
required to relinquish ownership of the car, which was not subject to
any forfeiture or confiscation order and merely served as security
for the payment of the fine. If the applicant had paid the fine after
his appeal had failed at last instance, he would have recovered
possession of the car (see paragraph 31 above). As it happened in the
present case, the applicant was not afforded the option of paying the
fine in cash because the car was sold when the appeal was still
pending. In these circumstances, the Court finds that the sequence of
events culminating in the sale of the applicant's car amounted to
interference with his right to peaceful enjoyment of possessions
within the meaning of Article 1 of Protocol No. 1.
- The
parties did not take a clear stance on the question of the rule of
Article 1 of Protocol No. 1 under which the case should be examined.
The Court observes that the charging of the car as security for
payment of the fine amounted to a temporary restriction on its use
and thus fell under the scope of the second paragraph of Article 1
concerning “a control of the use of property” (see Air
Canada v. the United Kingdom, judgment of 5 May 1995, Series A
no. 316 A, § 34). The same can be said about the
handover of the car to the bailiff, which did not involve a transfer
of ownership as enforcement could be stayed at any time and the car
returned to the applicant. However, the sale of the car had the
effect of depriving the applicant of ownership and brought the
situation into the ambit of the second rule of Article 1 of Protocol
No. 1 concerning deprivation of possessions.
- The
Court has next to determine whether the interference was justified in
accordance with the requirements of that provision. In this
connection it reiterates that the first and most important
requirement of Article 1 of Protocol No. 1 is that any interference
by a public authority with the peaceful enjoyment of possessions
should be “lawful”: the second paragraph recognises that
the States have the right to control the use of property by enforcing
“laws”. Moreover, the rule of law, one of the fundamental
principles of a democratic society, is inherent in all the Articles
of the Convention. The issue of whether a fair balance has been
struck between the demands of the general interest of the community
and the requirements of the protection of the individual's
fundamental rights only becomes relevant once it has been established
that the interference in question satisfied the requirement of
lawfulness and was not arbitrary (see, among other authorities,
Baklanov v. Russia, no. 68443/01, § 39, 9 June
2005, and Frizen v. Russia, no. 58254/00, § 33,
24 March 2005, with further references).
- The
applicant claimed that the seizure of the car as security had been
unlawful because there had been no separate charge order and because
it had been initially seized as physical evidence rather than as
security. The Court observes that on 19 March 1999 the Customs Office
issued a decision to seize the applicant's car as the object of the
offence (see paragraph 7 above). The Customs Code did not require a
separate charge order for seizure of a vehicle as security for
payment of a fine if its owner had no permanent place of residence
within Russia, which was the applicant's case (see paragraph 30
above). Contrary to the applicant's allegation, there is no
indication that the seizure of the car as security was unlawful under
the domestic provisions.
- The
applicant further alleged that the car had been handed over to the
bailiff prematurely, even before he had had an opportunity to have
his appeal examined by a court. At the admissibility stage the
Government claimed that the customs office had had no information
that the applicant had contested their decision before a court (see
the admissibility decision of 30 August 2005). Thus, the
contentious point between the parties is whether the customs office
were aware at the time of the handover that an appeal had been
lodged. The Court does not need to resolve this question of fact in
view of the following considerations.
- As
noted above, the handover of the car to the bailiff did not involve
an automatic transfer of ownership and enforcement proceedings could
be suspended at any time until the car had been sold. In a letter of
24 May 2001 the transport prosecutor determined that the customs
office had been aware of the applicant's appeal to a court at least
since 24 September 1999 but it had taken no steps to forward that
information to the bailiff or to suspend the enforcement proceedings,
in breach of the requirements of Article 376 of the Customs Code (see
paragraphs 19 and 31 above). That indicates that the conduct of the
Podolsk Customs Office was not in accordance with law.
- Furthermore,
it was claimed by the applicant and acknowledged by the respondent
Government that the bailiff had disregarded the legal requirements
applicable to the procedure for enforcement of the customs decision
and sale of the applicant's property. The failure to inform the
applicant about the opening of the proceedings affecting his
possessions and to ensure his effective participation should be
regarded as a most serious failing, undermining the substance of the
guarantees of Article 1 of Protocol No. 1. The bailiff had acted
unlawfully in that he had not notified the applicant about the
institution of the proceedings or advised him of the right to be a
party, had not attempted to identify the applicant's other assets
prior to billing the car for sale, and had not offered the car to the
creditor (the customs office) after the initial statutory two-month
period had expired. Moreover, the bailiff had reduced the sale price
on four occasions, without informing either the applicant or the
customs office. The prosecutor's office, the domestic courts and the
respondent Government, in their observations on the merits of the
case, recognised that the bailiff's actions had not been in
accordance with the law.
- Accordingly,
the Court finds that the interference with the applicant's rights
under Article 1 of Protocol No. 1 did not meet the requirement of
“lawfulness”. There has therefore been a violation of
that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
a letter of 5 September 2005, after the application had been declared
admissible, the Court invited the applicant's representative to
submit claims for just satisfaction by 7 November 2005. He did not
submit any such claim within the specified time-limit.
- In
these circumstances, the Court makes no award under Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Decides not to make an award under Article 41 of
the Convention.
Done in English, and notified in writing on 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
