AS TO THE ADMISSIBILITY OF
by Sašo DENESOSKI
against the former Yugoslav Republic of Macedonia
The European Court of Human Rights (Fifth Section), sitting on 9 June 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above application lodged on 15 May 2004,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Sašo Denesoski, is a Macedonian national who was born in 1967 and lives in Ohrid. He was represented before the Court by Mr S. Dimitrov, a lawyer practising in Bitola. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first set of proceedings
On 10 July 2000 the Ohrid Court of First Instance (“the first-instance court”) convicted the applicant and Mr A. of misdemeanours punishable under sections 206 and 207 of the 1998 Customs Act (see “Relevant domestic law” below). They were fined 25,000 Macedonian denars (MKD). The court also ordered a security measure in respect of Mr A., namely confiscation of a car which he had imported free of customs duties (“the confiscation order”). On 19 October 2000 the Bitola Court of Appeal overturned that decision and suspended the misdemeanour proceedings since they had not been instituted by a competent authority.
2. The second set of proceedings
On 6 March 2001 a fresh application for misdemeanour proceedings was lodged against the applicant and Mr A., now under section 295 of the 1993 Customs Act (see “Relevant domestic law” below).
On 18 May 2001 the first-instance court found the applicant and Mr A. guilty and fined them MKD 15,000 each. It observed that Mr A. had imported the above-mentioned car free of customs duties in January 1998. Under the applicable rules, the car should not have been disposed of for three years after being imported. However, Mr A. had transferred the car to a company T. under an uncertified investment agreement (договор за вложување). The court further established that on 2 April 2000, at 3, 30 a.m., the police had stopped the applicant while he was driving the car. The court ruled that the applicant knew or, in the circumstances, ought to have known that the car had been imported free of customs duties and that he could not use it. By a rectifying decision of 8 June 2001 the confiscation order was issued in respect of Mr A. On 11 September 2001 the Bitola Court of Appeal quashed these decisions and remitted the case for fresh consideration.
On 5 March 2002 the applicant was found guilty of committing an offence punishable under the 1993 Customs Act and was fined MKD 10,000. The confiscation order was issued again in respect of Mr A. This decision was set aside on 21 May 2002.
On 29 October 2002 the first-instance court found the applicant guilty and imposed the same fine. Relying on the evidence admitted in the first set of proceedings, the court found the applicant’s conduct to be in breach of section 295 § 3 of the 1993 Customs Act. It established that on 2 April 2000 at 3.30 a.m., the applicant had been driving the car even though he knew or, in the circumstances, ought to have known that he could not use it given the preferential customs regime under which it had been imported. The court further stayed the proceedings in respect of Mr A. since the four-year time-bar provided for in the 1998 Customs Act had expired. In this connection, it established that on 17 February 1998 Mr A. had transferred the car to company T. although he was legally not supposed to dispose of it until after 11 February 2001. Lastly, the court issued the confiscation order in respect of Mr A. as holder of title to the car.
The applicant appealed, submitting, inter alia, that the prosecution was time-barred, that his conviction was based on the 1993 Customs Act, which was not in force at the date of the purported offence, namely 2 April 2000, that no evidence for his guilt had been presented nor any reason given in respect of the confiscation order and the fine imposed.
On 7 November 2003 the Bitola Court of Appeal dismissed the applicant’s appeal. It held that there was sufficient evidence of his guilt; that it was irrelevant when the applicant had acquired factual possession of the car since the offence was regarded as being committed on 2 April 2000 and that the four-year time-bar, specified in the 1998 Customs Act, had not expired in the applicant’s case. It further stated that the confiscation order had been lawful. No comment was made on the applicant’s complaint that his conviction had been based on the 1993 Customs Act.
On 21 November 2003 this decision was served on the applicant.
3. Proceedings for restitution of the confiscated car
On 11 December 2003 the first-instance court dismissed Mr A.’s claim for restitution of the car. It further regarded the applicant’s claim submitted on the same ground as having been withdrawn. On 15 April 2004 the Bitola Court of Appeal upheld this decision.
B. Relevant domestic law
1. Customs Act (Закон за царините) (“the 1993 Customs Act”) (Official Gazette No. 20/93, 2 April 1993)
Section 29 of the 1993 Customs Act identified persons eligible to import goods free of customs duties. A person concerned was obliged to pay the customs levies if he or she, within three years after the import, intended to sell or to transfer to another person or to use the goods concerned for a purpose other than those for which the customs exemption or customs privilege had been granted.
According to section 289 § 1 (9), an enterprise or other legal entity would be fined by an amount of one to three times the evaded customs duty or one to two times the value of the undeclared goods if, before the expiration of the three-year time-limit, it had sold, transferred to another person or used the goods concerned for a purpose other than those for which the customs exemption had been granted.
Section 295 § 1 provided that an enterprise or other legal entity which bought, sold, accepted as a gift, retained, used or held on any ground the goods concerned, although it knew or in the circumstances ought to have known, that an offence had been committed, inter alia, under section 289 § 1 (9), would be sentenced to the same penalty as the offender. Under paragraph 3 of this provision the same applied to individuals, both nationals and foreigners.
2. Customs Act (Царински Закон) (“the 1998 Customs Act”) (Official Gazette No. 21/98, 8 May 1998)
Section 187 § 1 of the 1998 Customs Act provided that goods free of customs duties could not, within three years after being imported and without import levies having been paid, be sold, transferred to another person or used for a purpose other than that for which the customs exemption had been granted.
Under section 206 § 1 (14), an individual was to be fined by an amount of one to five times the evaded customs duty or one to three times the value of the goods if he or she, contrary to section 187 and without having paid the customs duty, sold, transferred to another person or used goods for a purpose other than that for which the customs exemption had been granted.
Section 207 §§ 1 and 3 provided that legal entities which, in relation to the activity pursued, bought, sold, accepted as a gift, retained or for transport purposes, held, used or secured possession of goods in respect of which it knew or, in the circumstances ought to have known, that an offence under sections 204-206 had been committed, would be sentenced to the same penalty as the offender. That provision applied likewise to individuals.
The date when the 1998 Customs Act was to enter into force was postponed on several occasions. By a law of 31 December 1999 (Official Gazette no. 86/99), it became applicable as of 1 April 2000.
The applicant complained under Article 6 § 1 of the Convention that he had not been given a fair trial since the domestic courts had wrongly decided that the prosecution against him was not time-barred and that they had not given due weight to the evidence admitted in the first set of proceedings. He further complained under Article 7 § 1 of the Convention that his conviction had been based on the 1993 Customs Act which was no longer in force on 2 April 2000, the date when the offence was allegedly committed. He affirmed that his conduct did not constitute an offence under the 1998 Customs Act.
1. The applicant complained that his conviction had been based on the 1993 Customs Act, which had not been in force at the material time, in breach of Article 7 of the Convention. That Article reads as follows:
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.”
1. The parties’ submissions
The Government admitted that the applicant’s conviction had been based, in error, on section 295 § 3 of the 1993 Customs Act which had not been in force when the applicant committed the offence. That, however, did not entail infringement of the applicant’s rights under this head given that section 207 § 1 (3) of the 1998 Customs Act provided for the same offence. They further argued that any complaint by the applicant concerning the confiscation order was incompatible ratione personae given that the latter had been issued against Mr A.
The applicant reaffirmed his allegations that on the critical date there had been no law classifying his act as an offence.
2. The Court’s assessment
(a) As to the applicant’s conviction
The Court reiterates that Article 7 is not confined to prohibiting the retrospective application of the criminal law to an accused’s disadvantage: it also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence and the relevant penalties must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision – and, if need be, with the assistance of the courts’ interpretation of it and with informed legal advice – what acts and omissions will make him criminally liable (see Korbely v. Hungary [GC], no. 9174/02, § 70, 19 September 2008).
In the present case, the Court must verify whether at the time when the applicant performed the act which led to his being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145, ECHR 2000 VII).
On the facts of the case, the Court notes that the domestic courts established 2 April 2000 as the date on which the applicant committed the offence of which he was convicted. It is not disputed between the parties that the 1998 Customs Act entered into force on 1 April 2000 and should have been applied in the applicant’s case. However, his conviction was based, in error, as conceded by the Government, on section 295 of the 1993 Customs Act. This, admittedly, must have undermined the applicant’s trust in the proper administration of justice, in particular since his complaint in this respect remained unanswered by the Court of Appeal. The Court however, subscribes to the Government’s view that this did not entail an infringement of his rights under Article 7 for the following reasons.
In the first place, the wording of section 207 of the 1998 Customs Act, as pointed out by the Government, is almost identical to that of section 295 of the 1993 Customs Act applied in the applicant’s case. This implies that the act concerned constituted a criminal offence at the time when it was committed. No evidence was presented to the contrary. Secondly, the applicant could not have been unaware that his alleged conduct might render him liable to prosecution. In this connection, the Court observes that his conviction in the first set of proceedings was based on section 207 of the 1998 Customs Act. Thirdly, the penalty imposed on the applicant under the 1993 Customs Act did not exceed the limits specified in section 206 § 1 (14) of the 1998 Customs Act. Indeed, the fine imposed under this latter Act in the first set of proceedings was heavier than that which the applicant actually received. Lastly, the Court’s role is not to rectify simple errors in domestic law.
It follows that, in the particular circumstances of the present case, this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) As to the confiscation order
The Court finds weight in the Government’s argument that the applicant cannot be regarded as having victim status in respect of the confiscation order since that measure was taken in respect of Mr A. This was confirmed in the civil proceedings in which Mr A., not the applicant, unsuccessfully claimed restitution of the confiscated car.
It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Court observes that the Bitola Court of Appeal, in its decision of 7 November 2003, took account of the applicant’s arguments that the prosecution against him had been time-barred and provided sufficient reasons for dismissing them. The Court finds this reasoning consistent and devoid of any arbitrariness.
The applicant’s complaint that the courts ignored the evidence adduced in the first set of proceedings is also manifestly ill-founded since the courts referred in their decisions to the case file and the evidence adduced in those proceedings.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Peer Lorenzen Registrar President