European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2010/877.html
Cite as: [2010] ECHR 877

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FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34856/06
by Wojciech Leon MLODZIEJEWSKI
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 25 May 2010 as a Chamber composed of:

Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 19 August 2006,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Wojciech Leon Mlodziejewski, is a Polish national who was born in 1956 and lives in Belgrade. He is represented before the Court by Mr D. Dimov, a lawyer practising in Sofia.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 13 June 2003 the applicant entered Bulgaria as a tourist with his personal car, registered in 1991. Pursuant to the applicable customs legislation, the car was placed under a temporary import customs regime.

On 14 June 2003 the applicant's car was stolen. In a certificate of 16 June 2003 the Sofia district public prosecutor's office stated that it had opened a preliminary inquiry into the theft. On the same day the applicant informed the customs authorities of the incident.

In a decision of 16 June 2003 the Head of the Sofia Customs Office established that due to the theft of the car, the temporary import customs regime could not be properly closed, and decided that the applicant should pay the amount of 20,942 Bulgarian levs (BGN) (10,707 euros: EUR) in customs duty, excise tax and value-added tax. The applicant appealed against this decision.

On 17 June 2003, in order to be allowed to leave Bulgaria, the applicant submitted a written statement to the customs authorities that he did not have sufficient funds in Bulgaria and that he undertook to pay his debt. There is no information as to whether he eventually paid the amount or whether any enforcement proceedings were opened against him.

In a decision of 14 August 2003 the Sofia Regional Customs Directorate upheld the decision of 16 June 2003. It held that by entering the Bulgarian customs territory with his car, the applicant had become subject to the Bulgarian customs legislation and therefore was obliged to close the temporary import customs regime by re-exporting his car within three months. His failure to do so had given rise to the obligation to pay the respective customs duty and other related taxes. The theft of the vehicle was not a ground for exempting him of his duty. The applicant appealed further.

In a judgment of 29 November 2004 the Sofia City Court dismissed the applicant's appeal. The applicant appealed against this judgment, claiming that since 1 November 2003 the applicable legislation had been changed, which entitled owners of stolen vehicles to remission from import taxes.

In a final judgment of 20 February 2006 the Supreme Administrative Court upheld the judgment of 29 November 2004. It held that the customs authorities had applied the law correctly and that the legislative amendment had no retroactive effect.

It appears that the applicant's car was never found.

B. Relevant domestic law

During the relevant period the Regulations for the Implementation of the Customs Act provided that foreigners entering Bulgaria with their personal cars were obliged to either re-export them within three months or pay the applicable import duties and taxes. Pursuant to Section 565 (5), in the event of a theft of vehicles temporarily imported in Bulgaria, the individuals responsible for the temporary import could only leave Bulgaria upon payment or securing the payment of such duties and taxes. In the event of lack of funds, such individuals could leave the country after submission of a written statement undertaking to pay their debt.

By virtue of an amendment of 1 November 2003 of Section 877 of the Regulations for the Implementation of the Customs Act such individuals were entitled to remission from the applicable customs duties and taxes, provided, inter alia, that there was no reasonable suspicion that they had been involved in any way in the theft. No retroactive application of the amendment was envisaged.

COMPLAINTS

The applicant complains under the criminal head of Article 6 § 1 of the Convention that by imposing customs duties and other taxes the authorities in fact penalised him for the fact that his car had been stolen and that the domestic courts did not take into consideration the question whether the customs violation was through his fault.

The applicant complains under Article 1 of Protocol No. 1 that customs duties and other taxes were imposed on him as a result of an event which was beyond his control and that their amount was disproportionate, which made him bear an excessive individual burden.

The applicant further complains, invoking under Article 14 of the Convention, that he was put in a less favourable position in comparison with those individuals whose cars were stolen after the legislative amendments of 1 November 2003 and who were entitled to remission from their debt.

Finally, the applicant complains, invoking Article 2 § 1 of Protocol No. 4 of the Convention, that by imposing a sanction on the applicant, who was the victim of the theft, the State unnecessarily restricted his right to liberty of movement within its territory.

THE LAW

The applicant complains that customs duties and other taxes were imposed on him as a result of an event which was beyond his control and that their amount was disproportionate, which made him bear an excessive individual burden.

He relies on Article 1 of Protocol No. 1 of the Convention, which, insofar as relevant, reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions...

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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of this part of the application to the respondent government.

The Court has examined the remainder of the applicant's complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint under Article 1 of Protocol No. 1 of the Convention concerning the proportionality of imposing customs duties and other taxes in his case;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President