European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF ŽAJA v. CROATIA

 

(Application no. 37462/09)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

 

4 October 2016

 

 

 

 

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 Žaja v. Croatia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 6 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 37462/09) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Miljenko Žaja (“the applicant”), on 5 May 2009.

2.  The applicant was represented by Mr P. Krnić, an advocate practising in Slavonski Brod. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

3.  The applicant complained that, as a result of a wrong interpretation of the relevant law, different from the one adopted by the domestic authorities in other similar cases, he had been convicted of and fined for a customs-related administrative offence even though he had done nothing illegal.

4.  On 24 March 2011 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1958 and lives in Prague.

6.  The applicant claims to have been living in Prague since 18 November 2000, when the Czech authorities granted him a visa for an extended stay (a long-term residence permit). On 18 February 2008 the applicant was granted the right to reside permanently in the Czech Republic (a permanent residence permit). However, he did not de-register his domicile (prebivalište) in Croatia.

7.  On 5 June 2008 the applicant bought a car (a Mercedes S 350 L) in Germany and on 10 June 2008 he registered it in the Czech Republic in his name.

8.  On 11 June 2008 the applicant entered Croatia in his car. He claimed that the purpose of his visit was, inter alia, to de-register his domicile in Croatia.

9.  On 15 June 2008 the applicant was stopped by the police in Zagreb while driving his car. The police authorities, finding it suspicious that a Croatian national was driving a car with foreign licence plates, impounded the car and reported the matter to the Customs Administration, suspecting that the car had been imported into Croatia without payment of the relevant taxes and that an administrative offence had thus been committed.

10.  On 17 June 2008 the applicant de-registered his domicile in Croatia.

11. On 15 September 2008 the applicant re-registered his domicile in Croatia.

A.  The administrative proceedings

1.  Principal proceedings

12.  Meanwhile, on 16 June 2008 the Customs Administration of the Ministry of Finance had instituted administrative proceedings (upravni postupak) with a view to establishing whether the applicant was liable to pay taxes on the importation of his vehicle and if so, in what amount. On the same day the Customs Administration had issued a decision impounding the applicant’s car, against which the applicant did not appeal.

13.  On 11 December 2008 the Customs Administration issued a decision ordering the applicant to pay, by 30 December 2008, the customs debt (consisting of the VAT and the special tax on motor vehicles) owed on the importation of his car, which amounted to 527,747.08 Croatian kunas (HRK).^[1]

14.  The applicant did not appeal against that decision, which thus became final and enforceable on 3 January 2009.

2.  Administrative enforcement proceedings

15.  Since the applicant did not pay the above sum, on 23 February 2009 the Customs Administration instituted administrative enforcement proceedings and issued a decision confiscating his car and ordering its sale with a view to collecting the above-mentioned customs debt.

16.  By a decision of 5 June 2009 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision of 23 February 2009.

17.  On 6 October 2009 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske).

18.  On 9 May 2012 that court, which in the meantime had become the High Administrative Court (Visoki upravni sud Republike Hrvatske), dismissed the applicant’s action.

B.  The administrative offence proceedings

19.  In the meantime, on 17 July 2008 the Customs Administration had also instituted administrative offence proceedings (prekršajni postupak) against the applicant for importing his car into Croatia without paying the relevant taxes.

20.  On 31 July 2008 the Customs Administration found the applicant guilty of committing an administrative offence under section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 below), and fined him HRK 5,000[2]. The Customs Administration found that the applicant had had his domicile in Croatia at the time of the commission of the offence. Therefore, it was irrelevant that he did not pay income tax in Croatia, that he had health insurance in the Czech Republic and not in Croatia, and that he had been granted the right to reside permanently in the Czech Republic. By having his domicile in Croatia he failed to satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Convention on Temporary Admission (“the Istanbul Convention”), which stated that the registered owner of a vehicle registered abroad must, in order to qualify for exemption, have his domicile outside the territory of the State into which the vehicle was being brought (see paragraph 45 below).

21.  On 8 September 2008 the High Court for Administrative Offences (Visoki prekršajni sud Republike Hrvatske) quashed the first-instance decision on account of incomplete facts, and remitted the case to the Customs Administration. The relevant part of that decision reads as follows:

“[The Customs Administration] states, as the decisive reason for its decision to find the accused guilty, that [he] has his domicile in ... Croatia, at [an] address in Zagreb, ..., and that the fact that he possesses a residence permit, that is, a valid visa, of the Czech Republic, is not sufficient evidence for the accused to be entitled to import [his] vehicle with total exemption from customs duties under the Convention on Temporary Admission.

However, it is precisely such explanation of the contested decision that, along with the other elements in the case file, shows that the taking of evidence was flawed, that [the Customs Administration] did not give [sufficient] reasons for the decisive facts on which it based its decision, and that they [that is, those facts and the reasons given] are in strong contradiction with each other. [In particular, the Customs Administration] while acknowledging the fact that [the accused] possesses a residence permit, that is, a visa, of the Czech Republic, further gives as reasons [to support the finding] that the accused has a domicile in ... Croatia, that he is not a taxpayer in ... Croatia, and that he is not even insured with the Croatian Health Insurance Fund.

....

... [D]uring the first-instance proceedings [before the Customs Administration] the accused stated circumstances and furnished evidence which, in his view, suggested that he had not committed the offence of which he was accused. [The Customs Administration therefore] needed to examine the evidence more thoroughly with a view to establishing the [relevant] facts completely and correctly.

...

This court considers that what is missing in the present case are the reasons for not accepting the status of the accused in the Czech Republic, the explanation of where the accused actually lives [resides] and, consequently, a clear conclusion as to whether or not he satisfied the conditions set out in Article 5 of Annex C of the Convention on Temporary Admission ....”

22.  In the resumed proceedings, by a decision of 9 October 2008 the Customs Administration again found the applicant guilty of committing the same administrative offence and fined him HRK 5,000. The Customs Administration again found that at the time of the commission of the offence the applicant had had his domicile in Croatia according to the Domicile and Residence of Citizens Act (see paragraph 32 below) and thus did not satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Istanbul Convention (see paragraph 45 below). Therefore, the fact that the applicant resided in the Czech Republic was of no relevance as he had not proved that he had his domicile there. The relevant part of that decision reads as follows:

“After having examined the evidence ..., this authority finds that the accused, Miljenko Žaja, committed the customs-related administrative offence he was charged with, defined in section 241(1) subparagraph 10 of the Customs Act.

Section 241(1) subparagraph 10 [of the Customs Act] provides that a fine for an administrative offence is to be imposed on a person who treats goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for the temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention.

In the proceedings it was established beyond doubt that on 15 June 2008 the accused was found operating the vehicle in question with foreign licence plates of the Czech Republic on the territory of Croatia as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention because he was a Croatian national who at the time of the commission of the offence had his domicile in Croatia.

The rights and obligations of participants in customs proceedings and the powers of the customs authorities as regards means of transport imported by natural persons into Croatian customs territory are regulated by the provisions of the [Istanbul] Convention. Likewise, customs proceedings and supervision of means of transport with foreign licence plates in the Croatian customs territory is regulated by the provisions of the Customs Act and the Decree on the implementation of the Customs Act.

It is established beyond dispute that the accused is a Croatian national who at the time of ... the offence had his domicile in ... Croatia. His defence that he had a registered residence in the Czech Republic was not accepted as a ground for exemption from liability ... Namely, the mere fact that he possesses a residence permit is not a proof that would entitle him to import [his] car with total relief from payment of customs duties under the Convention on Temporary Admission because he does not have his domicile abroad.

This is so because the procedure for temporary admission of private means of transport is regulated by Article 5 of Annex C to the [Istanbul] Convention in such a way that means of transport for private use must be registered in a territory other than that of temporary admission in the name of a person having a seat or domicile outside the territory of temporary admission and be imported and used by persons residing in that territory.

As regards his personal status, it has been established beyond doubt that the accused is a Croatian national, and that until 17 May 2008 he had [his] domicile in Croatia, in Zagreb. Furthermore, after the accused was reported as having committed the administrative offence, he de-registered his domicile in Zagreb - in this authority’s view - merely to avoid liability for the offence. At the time of the commission of the offence the accused did not satisfy the conditions for temporary importation with total relief and [was thus not entitled to] operate a vehicle with foreign licence plates. Namely, [Article 5 of] Annex C to the [Istanbul] Convention expressly provides that the right to temporary importation belongs to persons who have domicile outside the territory of temporary admission, that is, outside Croatia.

This authority has examined the argument of the accused that he is not a taxpayer in Croatia, which is evident from the certificate of 23 June 2008 issued by the Tax Administration, as well as the evidence [to the effect] that he is neither insured with the Croatian Health Insurance Fund nor has social security [cover] in Croatia. However, that evidence cannot lead to the adoption of a different decision, because the fact of [having or not] health insurance or social security is not evidence of domicile abroad.

This authority has also taken into account the fact that the accused had health insurance in the Czech Republic as of 3 October 2007. However, having [health] insurance is itself not relevant for the adoption of a different decision because the fact of [possessing] insurance, which according to the accused’s own statement is voluntary, does not give [him] the right to temporary admission of the vehicle in question with total relief.

On the basis of these findings of fact, and in accordance with the foregoing provisions, this authority has established beyond doubt that the accused did not satisfy the conditions for temporary admission, and that, by handling the vehicle in question contrary to [those] conditions, he committed the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act.

This authority has [also] examined the argument of the accused that he is registered in the Czech Republic [as an alien] for an extended stay, of which he submitted evidence [in the form of] a certificate [issued] by the Police of the Czech Republic. However, that evidence does not prove his domicile abroad, but only his stay. What is more, at the hearing held on 30 September 2008 the accused himself stated only the fact of his residence in the Czech Republic, which confirms that at the time of the commission of the offence he did not satisfy the conditions for the temporary admission of vehicles with total relief, in accordance with Annex C to the [Istanbul] Convention.

In particular, it is beyond doubt that at the time of the commission of the offence the accused had his domicile in Croatia. Section 2 of the Domicile and Residence of Citizens Act provides that a citizen’s domicile is the place where he has settled with the intention of permanently living there, and in which he has permanent accommodation secured.

The solemn statement of the commercial company [ERC] of 13 August 2008 stating that it would provide accommodation for Miljenko Žaja as of 1 January 2008 was also examined in the proceedings. However, [that statement] is not decisive for exempting [the accused] from liability because it was issued after this authority adopted its [first] decision of 31 July 2008 and because the statement in question does not give him the right to temporary admission with total relief.

The statement given by P.Ć. (before a notary public on 22 September 2008), which was also examined during the proceedings, is illogical and contrary to [both] the statement of Miljenko Žaja and the solemn statement of 13 August 2008 in that it suggests that the flat [in Prague in which the applicant claimed to be living] was rented to P.Ć., and not to the accused, whereas the solemn statement of ERC of 13 August 2008 suggested that it provided Miljenko Žaja with accommodation at the address [in Prague]. After examining that evidence, this authority considers that it was obtained with a view to proving that the accused had rented accommodation to live in abroad.

Moreover, the evidence of the accused that his wife is a director of company PZM in Prague is not relevant either, because in his statement of 22 July 2008 he stated that his wife lived in Zagreb and had her business in Croatia.

This authority does not dispute the fact that the accused is disabled, with a degree of disability of 100%, of which he submitted as evidence a membership card [issued by an association of disabled persons] in his name indicating his domicile [as being] in Zagreb ...

In the proceedings all the evidence furnished by the accused was examined. However, by that evidence the accused did not prove that he had been living abroad.

From all the evidence it is apparent that at the time of the commission of the offence the accused was a Croatian national who had his domicile in Croatia, with all the rights and obligations attached to that. The accused could not pose in Croatia as a person having domicile abroad and enjoy the rights of [such] a person in [his own] country, where until 17 June 2008 he had his domicile. Therefore, the accused did not satisfy the conditions for the temporary admission of a foreign car to the territory of the Republic of Croatia with total relief under Annex C [to the Istanbul Convention] and the Decree on the implementation of the Customs Act because his domicile was in Croatia at the time of the commission of the offence.

In the light of the foregoing, this authority has adopted a decision finding the accused guilty, as stated in the operative provisions.”

23.  By a decision of 29 October 2008 the High Court for Administrative Offences dismissed an appeal by the applicant and upheld the first-instance decision, endorsing the reasons given therein. The relevant part of that decision reads as follows:

“Against the first-instance decision the accused ... lodged ... an appeal on the grounds of breaches of procedure, incomplete and incorrect findings of fact, misapplication of the substantive law, and a wrong decision on the sanction. In the appeal the accused essentially argues ... that he has proved that at the time of entry into the Republic of Croatia he satisfied all statutory requirements for legally entering [Croatia] with the car in question, that the first-instance authority called into question the validity of the visa of the Czech Republic, where he was [first] granted an extended stay, and from 18 February 2008 the right to reside permanently, [and] that he uses the flat in Prague without restrictions. He therefore considers that there are no legal grounds or evidence for a finding that he committed the administrative offence in question.

...

The appeal is unfounded.

...

The accused unjustifiably denies liability for the administrative offence committed, because the first-instance authority[,] ... on the basis of his statement given at the hearing of 30 September 2008 and ... the written evidence[,] ... correctly concluded that his conduct had all the elements of the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act. [The accused] was on 15 June 2008 in Zagreb found operating a Mercedes Benz vehicle ... with foreign licence plates of the Czech Republic as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods given that at the time of the commission of the offence he had his domicile in Croatia. Since that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act and the [Istanbul] Convention, he committed the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act.

...

The other appellate arguments are also unfounded because the ... Customs Administration ... correctly and accurately established the [relevant] facts ... and correctly applied the substantive law...

In particular, special conditions for the temporary importation of means of transport are prescribed in Article 5 of Annex C to the Convention on Temporary Admission in Chapter III, where subparagraph (b) provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory. The Domicile and Residence of Citizens Act in its section 2 provides that domicile is the place where a citizen has settled with the intention of permanently living there.

Therefore, given that during the [first-instance] proceedings the decisive fact that the accused is a Croatian national who at the time of the commission of the offence had his domicile in the territory of the Republic of Croatia was established beyond doubt, he did not satisfy the conditions for temporary admission of a foreign car to the territory of the Republic of Croatia set out in the above-cited provisions of the Annex to the Convention on Temporary Admission.

[This court] therefore upholds as correct in its entirety the decision of the first-instance authority ... whereby the accused was found guilty and sanctioned for the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act ...”

24.  The applicant then, on 12 November 2008, lodged a constitutional complaint against the second-instance decision, alleging violations of his constitutional rights to fair proceedings, equality before the law and equality before the courts and other public authorities. In so doing he relied on Article 14 paragraph 2, Article 26 and Article 29 paragraph 1 of the Croatian Constitution (see paragraph 26 below). He argued that the High Court for Administrative Offences had misinterpreted the text of Article 5 of Annex C to the Istanbul Convention, which in the official text did not refer to “domicile” but to “living” abroad. Therefore, the fact that while living in Prague he had kept his domicile in Croatia was not relevant. The applicant further argued that the meaning given to certain legal terms in domestic legislation could not be relied on in interpreting the same or similar terms used in international agreements. In particular, the applicant argued as follows:

“In the decision [of 29 October 2008] the High Court for Administrative Offences totally wrongly quoted the text of Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission by stating [that it] ‘provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory’ [emphasis added].

However, the text Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission published in the Official Gazette [- International agreements] no. 16/98 is completely different and reads:

‘... means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons living in such a territory’ [emphasis added].

The obvious difference between [the two texts] is that the High Court for Administrative Offences refers to [having] domicile in the territory of another State as a condition for using a foreign car whereas the text of the Convention [on Temporary Admission] ... refers to ... living in the territory of another State, which is legally not the same.

Besides, the fact of living in the territory of another State, that is, in the State from which the disputed car originates, cannot be assessed in accordance with Croatian laws, and especially not in the way [the High Court for Administrative Offences] did it, but in accordance with the Convention [on Temporary Admission] itself and the Decree on the implementation of the Customs Act, .... [T]hat fact of living in the territory of another State is to be proved by work or residence permit.

... all customs offices in Croatia have, upon a citizen’s entry into [Croatia] by car, been establishing the fact of living in another State by checking only work or residence permit.

It is evident that in the instant case [the authorities] departed from the relevant law and the established practice ... by deliberately misquoting the relevant provisions with a view to creating conditions for the complainant’s conviction at all costs.

...

[T]he complainant proved beyond doubt, by presenting a valid visa for an extended stay, the contract on the use of a flat and a social security certificate, that he has de jure and de facto been living in the Czech Republic, and that he had legally bought the car in accordance with the Czech laws. [It follows that] the complainant perfectly legally entered Croatia in accordance with Article 5 subparagraph (b) ... of [Annex C to] the Convention on Temporary Admission, and that by so doing he did not commit a customs offence defined in section 241(1) subparagraph 10 of the Customs Act. In any event, the customs office [in question] would not have allowed the complainant to enter the territory of Croatia if he did not satisfy the said conditions.

It is totally unclear why the complainant should, as stated in the first-instance decision, pay any customs debt [in the situation] where he did not ask for customs clearance but only temporary admission. If the customs authorities considered that temporary admission was not allowed then they could have ordered that the car be exported from Croatia ... at the expense of the complainant.

The above described proceedings are certainly a chicanery for the reasons as stated and at the same time constitute a dangerous precedent for all other citizens of Croatia ...

If such proceedings would apply to all Croatian nationals operating cars with foreign licence plates, only a few [such] cars daily could enter Croatia. Besides, if that view of the lower judicial and other authorities on the [interpretation of the relevant] substantive law is to be accepted, not a single one of hundreds of thousands of Croatian citizens temporarily working in Germany, Italy or Switzerland could enter Croatia because they all legally have domicile in Croatia. [In this way] several thousands of cars should be confiscated every year, especially from citizens of Bosnia and Herzegovina having double nationality who enter Croatia on a daily basis.

In particular, the [contested] decisions infringed the right to impartial and fair proceedings guaranteed by Article 29 of the Croatian Constitution because for the reasons set out above those decisions are certainly neither fair nor impartial. On the contrary, they are absolutely biased and blatantly unfair.

The decision to prosecute only the complainant and not hundreds of thousands of others certainly constitutes a violation of Article 14 paragraph 2 of the Constitution whereby equality before the law is guaranteed to the complainant, and also of Article 26 of the Constitution which guarantees equality of all Croatian citizens before courts and other State authorities.”

25.  By a decision of 8 April 2009 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint, finding that the contested decisions were based on a “constitutionally acceptable interpretation and application of the relevant substantive law”. The Constitutional Court’s decision was served on the applicant’s representative on 22 April 2009. It reads as follows:

“5. According to section 241(1) subparagraph 10 of the Customs Act a ... natural person shall be liable for an administrative offence if he or she handles [the] goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the Convention on Temporary Admission,

Convention on Temporary Admission, Annex C, Article 5 subparagraph (b) provides as follows:

(b) means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and be imported and used by persons living in such a territory.

Having regard to the cited provisions of the Customs Act and Article 5 subparagraph (b) of the Annex C to the Convention on Temporary Admission, as well as the facts established in the proceedings ... (in particular the fact that it was established ... that at the time of the commission of the offence the complainant had registered domicile in Croatia in accordance with the relevant provisions of the Domicile and Residence of Citizens Act), the Constitutional Court finds that the legal views expressed in the contested decisions are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court considers that the relevant administrative authority and the High Court for Administrative Offences, relying on the facts established in the proceedings, gave reasons for their views expressed in the contested decisions, which undoubtedly do not result from an arbitrary interpretation and application of the relevant substantive law.

The Constitutional Court therefore finds that the complainant’s right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution was not violated by the contested decisions.

6. Article 29 paragraph 1 of the Constitution provides as follows:

Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his rights or obligations, or as regards suspicion or accusation of a criminal offence.

[In the present case] the administrative and judicial authorities acted within their jurisdiction established by law. It is evident from the case-file that the first-instance administrative authority took evidence in accordance with the Administrative Offences Act and that the High Court for Administrative Offences decided on the complainant’s appeal on the merits. It is also evident that the complainant had an opportunity to follow and participate in the proceedings, and that he could undertake all permitted procedural actions and lodge a remedy. The contested decisions are sufficiently reasoned and adopted in accordance with the relevant procedural rules.

For these reasons, the [Constitutional] Court finds that the contested decisions did not violate the complainant’s constitutional right to fair proceedings.

As regards the complainant’s argument that in similar cases the relevant authorities proceed differently, that in itself does not mean that the complainant’s constitutional right was violated by the contested decisions. In the [Constitutional] Court’s view, in the proceedings [complained of] the contested decisions were adopted in accordance with the relevant legislation. [T]herefore the fact that different decisions may have been adopted in other proceedings is of no relevance for the lawfulness of the decisions contested before the Constitutional Court in these proceedings, nor can it lead to a different decision in this particular case.

7. Article 26 of the Constitution ... is not relevant in this case.”

II.  RELEVANT CROATIAN LAW AND PRACTICE

A.  The Constitution

26.  The relevant part of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette no. 56/90 with subsequent amendments) provides as follows:

Article 14(2)

“Everyone shall be equal before the law.”

Article 26

“Every citizen of the Republic of Croatia and [every] foreigner shall be equal before the courts and other State or public authorities.”

Article 29(1)

“Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his rights or obligations, or as regards suspicion or accusation of a criminal offence.”

Article 31(1)

“No one shall be punished for an act which, before it was committed, was not defined as a criminal offence by a statute or international law ...”

Article 134

“International agreements in force which have been concluded and ratified in accordance with the Constitution and made public shall be part of the internal legal order of the Republic of Croatia and shall have precedence over the [domestic] statutes. ...”

B.  The Constitutional Court Act

1.  Relevant provisions

27.  The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99) - “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/02), which entered into force on 15 March 2002, reads as follows:

Section 62

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that a decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”) ...

2. If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted.

3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after a decision on these legal remedies has been given.”

Section 65(1)

“A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated, [together] with an indication of the relevant provision of the Constitution guaranteeing that right ...”

Section 71(1)

“ ... [t]he Constitutional Court shall examine only the violations of constitutional rights alleged in the constitutional complaint.”

2.  The Constitutional Court’s case-law

28.  On 9 July 2001 the Constitutional Court delivered decision no. U-III-368/1999 (Official Gazette no. 65/01) in a case where the complainant relied in her constitutional complaint on Articles 3 and 19 paragraph 1 of the Constitution, neither of which, under that court’s case-law, concerned a constitutional right. The Constitutional Court nevertheless allowed the constitutional complaint, finding violations of Articles 14, 19 paragraph 2 and 26 of the Constitution, on which the complainant had not relied, and quashed the contested decisions. In so deciding it held as follows:

“... a constitutional complaint cannot be based on either of the constitutional provisions relied on [by the complainant in her constitutional complaint].

However, the present case, as will be explained further, concerns a specific legal situation as a result of which this court, despite [its] finding that there have not been, and cannot be, any violations of the constitutional rights explicitly relied on by the complainant, considers that there are circumstances which warrant the quashing of [the contested] decisions.

...

Namely, it is evident from the constitutional complaint and the case file that there have been violations of [constitutional] rights, in particular those guaranteed by Article 14 (equality, equality before the law), Article 19 paragraph 2 (guarantee of judicial review of decisions of state and other public authorities) and Article 26 (equality before the courts and other state or public authorities) of the Constitution ...”

C.  The Customs Act

1.  Relevant provisions

29.  The relevant provisions of the Customs Act (Carinski zakon, Official Gazette, no. 78/99 with subsequent amendments), which was in force between 1 January 2000 and 30 June 2013, at the material time read as follows:

Section 4(1)

“For the purposes of this Act certain terms have the following meaning:

1. ...

2. persons having domicile - seat in the customs territory are:

- Natural persons having domicile or habitual residence in the customs territory,

...”

 

Section 241(1)

“A fine ... of between 1,000 and 100,000 kunas for an administrative offence shall be imposed on ... a natural person:

...

10. if he or she handles [the] goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for temporary admission of goods set forth in this Act or in the Convention on Temporary Admission,

...”

2.  Relevant subordinate legislation

30.  The Decree on the implementation of the Customs Act (Uredba za provedbu Carinskog zakona, Official Gazette, no. 161/03 with subsequent amendments), which was in force between 1 November 2003 and 30 June 2013, at the material time read as follows:

Chapter 5

Temporary Importation

Division 2

Conditions for Granting Temporary Importation with Total Relief

Subdivision 1

Road vehicles

Section 265(1)

“Total relief [from customs duties] shall be granted for road vehicles ... in the following cases:

(a)  if they are registered outside the customs territory of the Republic of Croatia and in the name of a person outside [that territory]; in the event that [they] are not registered, these conditions shall be considered satisfied if they are owned by a person having seat outside the customs territory of the Republic of Croatia,

b) if they are used by persons having seat outside the customs territory of the Republic of Croatia ...”

...

Section 269

“Without prejudice to the application of any special provisions, the time-limit for the completion of the temporary importation is ... for road vehicles for private use ... six months within a twelve-month period.”

D.  The General Tax Act

31.  The relevant part of the General Tax Act (Opći porezni zakon, Official Gazette, nos. 127/02 and 150/02), which was in force between 1 January 2001 and 31 December 2008, provided as follows:

I.  BASIC PROVISIONS

General provision

Section 1

“This Act regulates the relationship between taxpayers and the tax authorities which apply legislation on taxes and other levies, unless otherwise provided in special legislation concerning particular types of taxes or other levies, and represents the common basis of the tax system.”

Forms of levies

Section 2(1) and (3)

“(1)  Levies within the meaning of this Act are: taxes, customs duties, [public] fees and contributions.

...

(3)  Customs duties are taxes paid on imports.”

...

IV.  TAX LIABILITY RELATIONSHIP

4.  Taxpayer’s abode

[Fiscal] Domicile and habitual residence

Section 37

“(1)  For the purposes of this Act it shall be considered that the taxpayer has [fiscal] domicile [prebivalište] [in a place] where he or she owns or possesses a home [stan] continuously for [a period of] at least 183 days in one or two calendar years. Actual presence in the home is not required.

 (2)  If the taxpayer owns or possesses more than one home his [fiscal] domicile shall be in the place where his or her family has domicile, and for the taxpayer who is single, the place where he or she predominantly stays, or the place from which he or she predominantly sets off to work or to exercise other [professional] activity.

(3)  If the taxpayer has [fiscal] domicile both in Croatia and abroad, he or she shall be considered a domestic taxpayer.

(4)  A taxpayer shall have his or her habitual residence [uobičajeno boravište] within the meaning of this Act in a place in which he or she is staying under circumstances from which it may be concluded that he or she does not reside in that place or that territory only temporarily. Permanent residence or intermittent residence lasting at least 183 days in one or two calendar years shall be considered habitual residence for the purposes of this Act. Short periods of absence lasting no longer than one year shall not be relevant for the determination of habitual residence.”

E.  The Domicile and Residence of Citizens Act

1.  Relevant provisions

32.  The relevant provisions of the Domicile and Residence of Citizens Act (Zakon o prebivalištu i boravištu građana, Official Gazette no. 53/1991), which was in force between 8 October 1991 and 29 December 2012, read as follows:

Section 1

“Every Croatian citizen present on the territory of the Republic of Croatia has domicile in the Republic of Croatia, and may also have residence.”

Section 2

“A citizen’s domicile [prebivalište] is the place where he or she has settled with the intention of permanently living there.”

...

Section 5

“A citizen’s residence [boravište] may be habitual or temporary.

A habitual residence [uobičajeno boravište] is a place in which a citizen resides permanently without the intention of settling there.

A temporary residence [privremeno boravište] is a place in which a citizen stays up to thirty days.”

Section 6(1)

“Citizens have a duty to register and de-register domicile, habitual residence and any change of address.”

Section 16

“(1)  A fine of between [10 and 25 euros] in kuna equivalent for an administrative offence shall be imposed on:

- those who do not register or de-register their domicile or change of address or do not report residence or do not do so within the prescribed time-limit (section 6 paragraph 1, ...);

- those who give false or incorrect information when registering their domicile, residence or change of address (...).”

2.  Relevant case-law and the position of legal scholars

33.  It has generally been accepted among Croatian legal scholars that domicile has two elements: (a) the objective element (corpus), that is, the fact that an individual has settled (established, set up a home) in a particular place, and (b) the subjective element, that is, the intention (the will) of permanently living there (animus semper manendi). However, once established, domicile is not lost by the mere loss of one of its constituent elements. For example, a person who is (temporarily) absent from the town where he or she has established his or her domicile will not lose that status if he or she wishes to live there permanently, that is, as long as he or she intends to return to it. Likewise, a person who has established his or her domicile in a particular town but no longer intends to (permanently) live there will not lose his or her domicile in that town while he or she still lives there, that is, as long as he or she does not actually move elsewhere.

34.  Thus Croatian nationals who temporarily work and live abroad are considered to have retained their domicile in Croatia (see, for example, Supreme Court cases nos. Gž-4608/75 and Rev-325/81). For example, in case no. Us-8015/2002 of 23 November 2006 the Administrative Court quashed the decision of the Ministry of the Interior to de-register of its own motion the domicile of a Croatian national who had left Croatia for employment in a foreign country. It ruled that there was no legal basis for such a decision in the Domicile and Residence of Citizens Act as the plaintiff had left Croatia only temporarily, without the intention of permanently remaining abroad. The relevant part of that judgment reads as follows:

“From the provisions [of the Domicile and Residence of Citizens Act] ... it follows that every Croatian national present in the territory of the Republic of Croatia has a guaranteed domicile in the Republic of Croatia and that Croatian nationals freely decide which place in [its] territory ... to choose as their domicile. In so doing what is decisive is the will of the citizens themselves, because only the place where a citizen has settled with the intention of permanently living there may be regarded as his or her domicile...

The case file ... suggests that the plaintiff, her husband and her children had ... their registered domicile in the Republic of Croatia in the town of H. ... and that they had all gone together, for reasons of the husband’s employment, to live temporarily in ... Bosnia and Herzegovina, without the intention of staying there permanently. Furthermore, [the case file] also suggests that the plaintiff’s husband is, together with his father, the co-owner of a house in H., while in ... Bosnia and Herzegovina they do not own any immovable property.”

35.  In that case the Administrative Court particularly emphasised that the Domicile and Residence of Citizens Act did not provide how long a person could be absent from the place of his or her domicile for the absence to have legal consequences. For the same reason, in its judgment no. Rev-87/1996-2 of 14 February 1996 the Supreme Court was able to rule, though in the context of housing legislation, that the defendant’s (a Croatian national) absence from Croatia for reasons of employment, which had lasted six years during which he and his family lived in Canada, obtained Canadian nationality and his children went to school, could still be considered temporary.

36.  While a person may have only one domicile, it is clear (see section 1 of the Domicile and Residence of Citizens Act in paragraph 32 above) that he may at the same time have his domicile and (habitual) residence in different places (for example, students, army recruits, prisoners, long-term hospital patients, who study, serve or are being treated in a place different from the place of their domicile).

F.  The Administrative Offences Act

37.  The relevant provisions of the Administrative Offences Act (Prekršajni zakon, Official Gazette no. 107/07 with subsequent amendments), which has been in force since 1 January 2008, are as follows.

38.  Section 82(3) provides that if the Administrative Offences Act does not contain specific provisions on the procedure in administrative offence proceedings, the provisions of the Criminal Procedure Act (see paragraph 41 below) should apply mutatis mutandis.

39.  Sections 214-216 provide for the remedy of reopening of proceedings before the High Court for Administrative Offences, and regulate the procedure following a petition for reopening.

40.  Section 220 reads as follows:

“(1)  The Principal State Attorney may lodge a request for the protection of legality against final judicial decisions ... if the law has been breached.

(2)  The provisions of the Criminal Procedure Act concerning the lodging of and deciding on the request for the protection of legality shall be applied mutatis mutandis in administrative offence proceedings.

(3)  The State Attorney does not have to lodge a request for the protection of legality if he or she considers that [even though] the law was breached, that breach did not affect the correctness of the decision and [the case] does not concern a legal issue important for the consistency of the case-law or for the protection of human rights.”

G.  The Criminal Procedure Act

41.  The relevant provisions of the Criminal Procedure Act (Zakon o kaznenom postupku, Official Gazette no. 152/08 with subsequent amendments), which has been in force since 1 September 2011, read as follows:

Section 502

“(1)  ...

(2)  The provisions concerning the reopening of criminal proceedings shall be applicable also in the case where a petition to review a final judicial decision has been filed on the basis of a final judgment of the European Court of Human Rights whereby, in respect of the accused, a violation of the rights and freedoms under the Convention for the Protection of Human Rights and Fundamental Freedoms was found.

(3)  A petition for reopening of the proceedings on the basis a final judgment of the European Court of Human Rights may be lodged within thirty days of the date on which the judgment of the European Court of Human Rights becomes final.”

...

Section 509

“(1)  The Principal State Attorney may lodge a request for the protection of legality against final judicial decisions if the law has been breached.

(2)  The Principal State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in [criminal] proceedings in a manner which constitutes a violation of fundamental human rights and freedoms guaranteed by the Constitution, international law or [primary] legislation.

(3)  ...”

III.  RELEVANT CZECH LAW

The Aliens’ Residence Act

42.  The relevant part of Act No. 326/1999 on the Residence of Foreigners in the Territory of the Czech Republic (Zákon č. 326/1999 Sb., o pobytu cizinců na území České republiky - “the Czech Residence of Aliens Act”), as in force at the material time, provides as follows:

Section 68

(1) A permanent residence permit shall be issued to foreigners, at their request, after five years of continuous residence in [the country].

 (2) The period referred to in paragraph 1 shall include residence in [the country] on [the basis of] a long-term visa [that is, a visa for a term exceeding 90 days] or a [long-term] residence permit ...

 (3) The period referred to in paragraph 1 shall include also periods of absence [from the country] during the time of residence, if each period of absence does not exceed six consecutive months, or if, in total, they do not exceed ten months ...

 (4) ...”

IV.  RELEVANT INTERNATIONAL LAW

A.  The Istanbul Convention on Temporary Admission

1.  Relevant provisions

43.  The Convention on Temporary Admission (“the Istanbul Convention”) of 26 June 1990, which entered into force on 27 November 1993, is an instrument of the World Customs Organization. Temporary admission without payment of customs duties is provided for in order to minimise the costs of border crossing and facilitate the free movement of goods across frontiers. The aim of the Istanbul Convention is to simplify and harmonise temporary admission procedures. It has sixty-five Contracting Parties (of which forty-four have ratified its Annex C Concerning Means of Transport), including Croatia, the Czech Republic and the European Union.

44.  According to its Article 34 § 3, the Istanbul Convention was drafted “in a single original, in the English and French languages, both texts being equally authentic”.

45.  The relevant provisions of the Istanbul Convention read as follows:

CHAPTER I

General provisions

Definitions

Article 1

“For the purposes of this Convention, the term:

(a) ‘temporary admission’ means :

the Customs procedure under which certain goods (including means of transport) can be brought into a Customs territory conditionally relieved from payment of import duties and taxes and without application of import prohibitions or restrictions of economic character; such goods (including means of transport) must be imported for a specific purpose and must be intended for re-exportation within a specified period and without having undergone any change except normal depreciation due to the use made of them;

...”

...

ANNEX C

ANNEX CONCERNING MEANS OF TRANSPORT

...

CHAPTER II

Scope

Article 2

“The following shall be granted temporary admission in accordance with Article 2 of this Convention:

(a) means of transport for commercial use or for private use;

(b) ...”

CHAPTER III

Miscellaneous provisions

Article 5

“For the facilities granted by this Annex to apply:

(a) ...

(b) means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person established or resident in a territory other than that of temporary admission [the French text of the Istanbul Convention reads: résidant en dehors du territoire d’admission temporaire], and be imported and used by persons resident in such a territory [résidant dans un tel territoire].”

...

Article 9

“1. ...

2. Means of transport for private use may remain in the territory of temporary admission for a period, continuous or not, of six months in every period of twelve months.”

46.  The Istanbul Convention entered into force in respect of Croatia on 3 December 1998. It was incorporated into the Croatian legal system by the Government’s Decree on Accession to the Convention on Temporary Admission (Uredba o pristupanju Konvenciji o privremenom uvozu, Official Gazette - International Agreements, no. 16/98). The term “persons resident” in Article 5 of Annex C was in the Croatian text of the Istanbul Convention translated on its first occurrence as “osobe s prebivalištem” (“persons having domicile”) and on its second occurrence as “osobe koje žive” (“persons living” or “persons who live”). The Croatian version of Article 5 of Annex C to the Istanbul Convention, as published in the Official Gazette - International Agreements (no. 16/1998 of 3 December 1998), reads as follows:

“Za primjenu povlastica koje jamči ovaj Aneks:

(a) ...;

(b) prijevozna sredstva za privatnu uporabu moraju biti registrirana na teritoriju različitom od teritorija privremenog uvoza, na ime osoba sa sjedištem ili prebivalištem na teritoriju izvan teritorija privremenog uvoza, i moraju ih uvesti i koristiti osobe koje žive na tom teritoriju.”

2.  The practice of the Croatian authorities

(a)  The practice as submitted by the Government

(i)  The practice of the Customs Administration and the case-law of the High Court for Administrative Offences

47.  From the (unpublished) practice of the Customs Administration (decisions nos. P-1411/07 of 11 September 2007, P-374/08 of 27 November 2008, P-967/08 of 22 December 2008, and P-520/08 of 23 April 2010) and the case-law of the High Court for Administrative Offences (decisions nos. FPž-88/09 of 28 January 2009, FPž-75/09 of 25 March 2009, FPž-1162/10 of 8 February 2011, and FPž-1285/07 of 18 May 2011), submitted by the Government, it follows that those authorities interpreted the term “persons resident” in Article 5 of Annex C to the Istanbul Convention as “persons having domicile”, and in so doing referred to the definition of domicile provided in the Domicile and Residence of Citizens Act (see paragraph 32 above).

(ii)  The case-law of the Administrative Court

48.  From the (published) case-law of the Administrative Court submitted by the Government, it follows that that court has also interpreted the term “persons resident” in Article 5 of Annex C to the Istanbul Convention as “persons having domicile”, and in so doing referred to the definition of domicile provided in the Domicile and Residence of Citizens Act.

49.  In cases nos. Us-12183/2005 of 29 October 2008 and Us-11809/2005 of 19 March 2009, the Administrative Court dismissed actions by plaintiffs who had imported vessels registered abroad into Croatia without paying the relevant taxes. It so decided because it had established that the plaintiffs had both domicile and habitual residence in Croatia. In particular, the court found that the plaintiffs had domicile in Croatia not only because they had their registered domicile in the country, but also because they had had health and pension insurance there.

50.  In case no. Us-11745/2001 of 18 January 2006 the Administrative Court dismissed an action by a plaintiff who had imported a car registered abroad into Croatia without paying the relevant taxes. It established that the plaintiff had domicile in Croatia not only because he had registered domicile in the country but also because he did not possess a foreign residence or work permit.

(b)  Other relevant practice

(i)  The Customs Administration’s opinions

51.  In a series of opinions issued in the period between 19 December 2006 and 10 January 2013 (opinions no. 212-01/06-01/126 of 19 December 2006, no. 415-01/07-01/09 of 30 March 2007, no. 413-01/07-01/70 of 9 May 2007, no. 413-04/07-01/127 of 10 August 2007, no. 413-01/08-01/235 of 4 June 2008, no. 413-01/08-01/557 of 12 December 2008, no. 413-01/09-01/59 of 26 January 2009, no. 303-01/09-01/03 of 6 February 2009, no. 413-01/09-01/247 of 15 April 2009, no. 413-01/10-01/209 of 31 May 2010, no. 413-01/12-01/135 of 3 April 2012, no. 413-01/11-01/319 of 15 September 2011, no. 413-01/11-01/376 of 24 October 2011, no. 413-01/12-01/77 of 27 February 2012, no. 413-01/12-01/199 of 23 May 2012, no. 413-01/12-01/234 of 13 June 2012, no. 413-01/12-01/379 of 20 September 2012, no. 413-01/12-01/481 of 22 November 2012, no. 413-01/13-01/4 of 3 January 2013, no. 413-01/13-01/7 of 7 January 2013, and 413-01/13-01/7 of 10 January 2013), issued in reply to queries from individuals, the Customs Administration consistently held that the term “person resident” referred to in Annex C to the Istanbul Convention was to be interpreted as “persons having habitual residence”. In none of these opinions did the Customs Administration refer to the definition of domicile provided in either the Domicile and Residence of Citizens Act or the General Tax Act. Rather, in one of the opinions (opinion of 31 May 2010) it cited the definition of habitual residence provided in the Domicile and Residence of Citizens Act (see paragraph 32 above), whereas in four of the opinions (opinions of 22 November 2012 and of 3, 7 and 10 January 2013) it referred to the definition of habitual residence provided in the General Tax Act (see paragraph 31 above). While in the first of the above-cited opinions (opinion of 19 December 2006) the Customs Administration held that persons having registered domicile in Croatia could not be considered to have habitual residence abroad, in another of the opinions it expressly stated that domicile was irrelevant for determining whether a person had habitual residence (opinion of 15 September 2011).

52.  The view of the Customs Administration is best summarised by the following quotation (opinions of 26 January 2009, 6 February 2009, 15 April 2009, 15 September 2011 and 20 September 2012):

“The use of foreign goods in the customs territory of the Republic of Croatia, within the temporary importation procedure, is governed by sections 145-152 of the Customs Act and the corresponding provisions, that is, sections 260-297, of the Decree on the implementation of the Customs Act, further to the International Convention on Temporary Admission.

The basic rule in section 265 of the above-mentioned Decree is that motor vehicles registered outside the customs territory of the Republic of Croatia in the name of a person with habitual residence [s uobičajenim boravištem] outside the customs territory can be used (operated) in our country only by those persons who also have habitual residence [uobičajeno boravište] in another country (the notion of habitual residence implies permanent stay in a certain territory for at least 183 days in a year). In addition to foreign nationals residing in another country, Croatian nationals residing in a third country for work, study or other reasons who occasionally enter Croatia with their vehicles for a visit, holidays and the like may also benefit from this rule. In the case of customs control [aimed at] establishing whether the aforementioned conditions for the use of vehicles with foreign licence plates are met, it is necessary to provide as evidence a residence permit, residence registration [form] or [proof of] accommodation, employment, study or the like, abroad.”

(ii)  The Customs Administration’s press release of 4 April 2011

53.  On 4 April 2011 the Customs Administration issued a press release entitled “The use of vehicles with foreign licence plates in the Customs Territory of the Republic of Croatia”. The relevant part of that press release reads as follows:

“The Ministry of Finance - Customs Administration, with a view to informing the public of the applicable customs regulations and [in order] to prevent possible irregularities or illegal acts due to ignorance ..., wishes by issuing the following press release to inform the public of the rules regarding the use of vehicles with foreign licence plates in the customs territory of the Republic of Croatia.

The use of foreign goods in the customs territory of the Republic of Croatia, in particular cars with foreign licence plates, is permitted under the temporary importation procedure. In terms of the customs regulations, the temporary importation procedure, which is regulated by national legislation (sections 145-152 of the Customs Act and sections 260-297 of the Decree on the implementation of the Customs Act) and by the International Convention on Temporary Admission (the Istanbul Convention), allows the temporary admission of goods with conditional exemption from customs duties and taxes ...

In accordance with Annex C to the Convention on Temporary Admission, the right to temporary importation of a vehicle with exemption from customs duties and taxes may be granted under the following conditions:

Means of transport for private use:

- must be registered in a territory other than the territory of temporary admission,

- must be registered in the name of a person having a seat or domicile in the territory of another state and

- must be imported and used by persons living in that territory.

This means that the right to temporary importation of means of transport for private use (cars, vessels, motorcycles, etc.) with foreign registration belongs to persons with a seat, domicile or habitual residence in the territory of another state.

Habitual place of residence is the place where a person, regardless of his or her nationality, usually lives for more than six months in each calendar year for personal or professional reasons or, in the case of an unemployed person, for personal reasons that suggest [that there are] close ties between the person and the place where he or she lives.

That is why, for example, a motor vehicle with foreign licence plates may in the Republic of Croatia be driven exclusively by a foreign national with residence in the country of registration, another foreign national having residence in a third country, or by a Croatian national who has habitual place of residence abroad. [In those cases] the vehicle may altogether (that is, irrespective of the fact that it may occasionally leave the customs area of the Republic of Croatia) be present and used in ... Croatia for up to six months in a twelve-month period, after which the vehicle has to leave the customs area. A Croatian or foreign national who has habitual place of residence in ... Croatia, must not use a vehicle with foreign registration plates in Croatia, regardless of the fact he or she may possess a driving licence of the country of registration.

...

What is relevant in terms of exercising the rights set forth in Annex C to the Convention on Temporary Admission is not the nationality but domicile or residence of the person using the vehicle.

That means, for example, that a person who is both a Croatian and foreign national, and has domicile and habitual residence in the Republic of Croatia, shall be considered a domestic natural person.

If, therefore, a person with Croatian, foreign or dual nationality has habitual residence in the customs territory of the Republic of Croatia, he or she must not drive vehicles with foreign licence plates, that is, vehicles in respect of which customs duty, excise tax and VAT have not been paid.

Otherwise [that person shall be] considered as committing a serious customs offence which in the end, besides a fine, may entail the application of the protective measure of confiscation of the vehicle as the object of the offence, and the collection of the customs debt (the customs duty, VAT and the excise tax) [due on the importation] of that vehicle. In particular, in supervising the temporary admission of vehicles in accordance with Annex C to the Convention on Temporary Admission, during 2010 the Customs Administration carried out a total of 956 interventions [that is, spot-checks], of which in 302 cases it found irregularities, and [collected] customs debts in the total amount of HRK 5,664,943.11.”

(iii)  The Customs Administration’s instruction of 1 June 2011

54.  On 1 June 2011 the Customs Administration issued an Instruction on the use of vehicles with foreign licence plates in the Republic of Croatia, which was addressed to all custom offices as a practice direction. The relevant part of that instruction reads as follows:

“The following instruction is given with a view to removing doubts and uncertainties and [in order to] harmonise procedures relating to the application of Annex C to the Convention on Temporary Admission and the use of cars with foreign licence plates in the customs territory of the Republic of Croatia:

Lawful use of foreign means of transport within the customs territory of the Republic of Croatian is granted under the temporary importation procedure.

Temporary importation of means of transport, including motor vehicles, is provided for in Annex C to the Convention on Temporary Admission.

In accordance with Annex C to the Convention on Temporary Admission, the right to temporary importation of motor vehicles with exemption from customs duties and taxes may be exercised under the following conditions:

Means of transport for private use:

- must be registered in a territory other than the territory of temporary importation,

- must be registered in the name of a person having a seat or domicile in the territory of another state and

- must be imported and used by persons living in a territory other than the territory of temporary importation.

This means that the right to the temporary importation of vehicles with foreign registration for private use may be exercised by persons who have a seat, domicile or habitual residence in the territory of another state. Thus, [only] persons who normally live in the territory of a country other than the country of temporary importation may benefit from the procedure of temporary importation of means of transport. In this regard, for example, a motor vehicle with foreign licence plates may be driven in the Republic of Croatia by:

- a foreign national with residence in the country of registration,

- a foreign national having residence in a third country,

- a Croatian national who has habitual residence (uobičajeno boravište) abroad.

In this connection elements such as employment or [otherwise] earning a living, health insurance, etc. are the elements that may be indicative of habitual residence in a certain country, which [however] does not mean that the existence or non-existence of one of the conditions listed automatically constitutes [decisive] evidence of habitual residence in that country.

...

It follows ... that nationality alone, or even temporary residence granted to a person in a particular country, does not automatically entitle to or prohibit from the driving of cars with foreign licence plates in the customs territory of the Republic of Croatia. Rather, the persons in question have to prove their right to operate foreign vehicles by the available documents. This means that credible evidence has to be furnished that those persons ... do not live in the customs territory of the Republic of Croatia.

Thus, the fulfilment of the conditions for the use of foreign motor vehicles in the customs territory of ... Croatia ... is to be assessed on a case-by-case basis, on the basis of the available evidence, which the beneficiary of the temporary admission procedure has to obtain and present.”

(iv)  Decisions of the Customs Administration and the Ministry of Finance and the case-law of the Administrative Court

55.  In the first-instance decision of the Customs Administration no. UP/I-415-02/06-01/115 of 23 May 2006, which was upheld by the second-instance decision of the Ministry of Finance UP/II-415-05/06-01/700 of 6 July 2006, both authorities in interpreting the term “person resident” referred to in Annex C to the Istanbul Convention relied on the definition of fiscal domicile and habitual residence provided in the General Tax Act (see paragraph 31 above). By its judgment no. Us-9157/2006-16 of 9 September 2009 the Administrative Court dismissed the subsequent action for judicial review against those decisions, relying on the fact that the plaintiff had registered domicile in Croatia.

56.  In the second-instance decision of the Ministry of Finance UP/II-471-01/07-01/176 of 9 January 2008, whereby it upheld the first-instance decision of the Customs Administration no. UP/I-415-02/05-01/101 of 4 July 2007, the Ministry in interpreting the same term also relied on the definition of fiscal domicile and habitual residence provided in the General Tax Act (see paragraph 31 above). By its judgment no. Us-2367/2008-6 of 5 October 2010 the Administrative Court dismissed the subsequent action for judicial review against those decisions. In so doing it referred to the notion of fiscal domicile and habitual residence as defined in the General Tax Act.

57.  In its judgment no. Us-11421/2005-7 of 31 July 2008 the Administrative Court relied on the definition of fiscal domicile and habitual residence provided in the General Tax Act (see paragraph 31 above) when interpreting the term “person resident” referred to in Annex C to the Istanbul Convention .

B.  The OECD Model Convention with Respect to Taxes on Income and Capital

58.  The OECD Model Convention with Respect to Taxes on Income and Capital of 11 April 1977, also known as the OECD Model Convention on Elimination of Double Taxation, is a “soft” law instrument adopted within the Organisation for Economic Cooperation and Development in Europe, which is intended to serve as a model for drafting bilateral agreements for the avoidance of double taxation. The relevant part of the Model Convention reads as follows:

CHAPTER I

SCOPE OF THE CONVENTION

Article 1

PERSONS COVERED

 “This Convention shall apply to persons who are residents of one or both of the Contracting States.”

...

CHAPTER II

DEFINITIONS

...

Article 4

RESIDENT

“1. For the purposes of this Convention, the term “resident of a Contracting State” means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature ....

2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:

 a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests);

 b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode;

 c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national;

 d) if he is a national of both States or of neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.

3. ...”

C.  Other relevant international law

59.  Provisions identical to Article 4 - the original title of which was “Fiscal Domicile” - of the OECD Convention are contained in Article 4 of the United Nations Model Double Taxation Convention between Developed and Developing Countries, as well as in all 55 bilateral agreements for the avoidance of double taxation concluded by Croatia. For example, those provisions are contained in Article 4 of the agreements with the Czech Republic (Official Gazette - International Agreements nos. 88/99 and 6/12, which entered into force on 28 December 1999) and France (Official Gazette - International Agreements no. 7/04, which entered into force on 1 September 2005), as well as in Article 4 of the agreement concluded between the former Yugoslavia and the United Kingdom (Official Gazette of the Socialist Federal Republic of Yugoslavia - International Agreements no. 7/82), which entered into force on 16 September 1982 and applies to Croatia by virtue of its notification of succession on 8 October 1991. In those agreements the term “resident” (résident) (in the agreements with France and the Czech Republic), or “fiscal domicile” (in the agreement with the United Kingdom) were translated into Croatian as “rezident” or (in the agreement with the United Kingdom) “fiskalni domicil”. The term “permanent home” (foyer d’habitation permanent) was translated as “prebivalište” or, in the agreement with the United Kingdom, “stalno mjesto stanovanja”. The term “place of habitual abode” (lieu de séjour habituel) was translated as “uobičajeno boravište”.

V.  RELEVANT COUNCIL OF EUROPE INSTRUMENTS

60.  The relevant part of the Resolution (72) on the Standardisation of the Legal Concepts of “Domicile” and of “Residence”, adopted by the Committee of Ministers on 18 January 1972 at the 206th meeting of the Ministers’ Deputies, reads as follows:

ANNEX

RULES

Domicile

“No. 1. The concept of domicile imports a legal relationship between a person and a country governed by a particular system of law or a place within such a country. This relationship is inferred from the fact that that person voluntarily establishes or retains his sole or principal residence within that country or at that place with the intention of making and retaining in that country or place the centre of his personal, social and economic interests. This intention may be inferred, inter alia, from the period of his residence, past and prospective, as well as from the existence of other ties of a personal or business nature between that person and that country or place.

No. 2. A person’s domicile is regarded as continuing until another domicile is acquired.

No. 3. ...”

...

Residence

“No. 7. The residence of a person is determined solely by factual criteria; it does not depend upon the legal entitlement to reside.

No. 8. A person has a residence in a country governed by a particular system of law or in a place within such a country if he dwells there for a certain period of time. That stay need not necessarily be continuous.

No. 9. In determining whether a residence is habitual, account is to be taken of the duration and the continuity of the residence as well as of other facts of a personal or professional nature which point to durable ties between a person and his residence.

No. 10. The voluntary establishment of a residence and a person’s intention to maintain it are not conditions of the existence of a residence or an habitual residence, but a person’s intentions may be taken into account in determining whether he possesses a residence or the character of that residence.”

VI.  RELEVANT EUROPEAN UNION LAW

61.  In the official Croatian translation of the Council’s Directive of 28 March 1983 on tax exemptions within the Community for certain means of transport temporarily imported into one Member State from another (Directive 83/182/EEC on tax exemptions for temporarily imported vehicles) the term “normal residence” is translated into Croatian as “uobičajeno boravište”.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 7 OF THE CONVENTION

62.  The applicant complained, under Article 6 § 1 of the Convention, that his actions did not amount to an administrative offence and that the domestic authorities had wrongly interpreted the term “persons resident” in Article 5 of Annex C to the Istanbul Convention on Temporary Admission by equating it with the term “domicile” as defined in the domestic legislation.

63.  The Government contested that argument.

64.  The Court, being master of the characterisation to be given in law to the facts of the case, considers, having regard to its case-law (see, for example, Korbely v. Hungary [GC], no. 9174/02, ECHR 2008; and Vasiliauskas v. Lithuania [GC], no. 35343/05, 20 October 2015), that this complaint falls to be examined exclusively under Article 7 of the Convention (see Nadtochiy v. Ukraine, no. 7460/03, § 31, 15 May 2008), which 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.”

A.  Admissibility

65.  The Government disputed the admissibility of this complaint by arguing that the applicant had failed to exhaust domestic remedies.

1.  The parties’ submissions

66.  The Government argued that neither during the administrative offence proceedings nor in his constitutional complaint had the applicant complained of a violation of Article 7 of the Convention. In particular, in his constitutional complaint the applicant had alleged violations of his constitutional rights to equality before the law and a fair hearing, which rights corresponded to those guaranteed by Article 6 of the Convention.

67.  The applicant replied that he had properly exhausted domestic remedies.

2.  The Court’s assessment

68.  The Court first notes that section 65(1) of the Constitutional Court Act requires complainants to indicate in their constitutional complaints the constitutional right which has allegedly been violated, as well as the relevant provision of the Constitution guaranteeing that right. Likewise, section 71(1) of the same Act provides that the Constitutional Court examines only violations of the constitutional rights alleged in the constitutional complaint (see paragraph 27 above). It is evident that the applicant in his constitutional complaint did not rely on Article 7 of the Convention. Nor did he rely on Article 31 paragraph 1 of the Constitution, which is the provision that arguably corresponds to Article 7 of the Convention. Instead, he referred principally to Article 14 paragraph 2, Article 26 and Article 29 paragraph 1 of the Constitution, which are the provisions that largely correspond to Article 6 § 1 and Article 14 of the Convention (see paragraphs 24 and 26 above).

69.  However, the Court also notes that the rule that the Constitutional Court examines only the violations of the constitutional rights alleged in the constitutional complaint is not as absolute as the Government suggested. In particular, it is clear from the Constitutional Court’s decision no. U-III-363/1999 of 9 July 2001 (see paragraph 28 above) that in certain cases it is not necessary for persons lodging a constitutional complaint to refer to the relevant Articles of the Constitution, as sections 65(1) and 71(1) of the Constitutional Court Act may suggest. Sometimes it may be sufficient for a violation of a constitutional right to be apparent from the complainant’s submissions and the case file.

70.  Therefore, while it is true that in his constitutional complaint the applicant did not explicitly rely on Article 7 of the Convention or the corresponding provision of the Constitution, he did argue that, because he lived abroad, he had not committed any offence by entering Croatia in his car, and that his conviction for the administrative offence in question had resulted from the erroneous interpretation of the term “persons resident” in Annex C to the Istanbul Convention by the domestic authorities, which had, in his view, wrongly equated it with the term “domicile” as defined in the domestic legislation (see paragraph 24 above).

71.  This means that before the Constitutional Court the applicant had expressed his grievances in a manner which leaves no doubt that the same complaint was subsequently submitted to the Court (see paragraph 24 above and compare with the applicant’s arguments summarised in paragraph 3 and 62 above and paragraphs 74-77 below; and contrast with Merot d.o.o. and Storitve Tir d.o.o. v. Croatia (dec.), nos. 29426/08 29737/08, § 36, 10 December 2013). By having therefore raised in substance the same issue at the domestic level, the applicant provided the national authorities with the opportunity which is in principle intended to be afforded to Contracting States by Article 35 § 1 of the Convention, namely of putting right the violations alleged against them (see Glasenapp v. Germany, 28 August 1986, §§ 44-46, Series A no. 104; and Lelas v. Croatia, no. 55555/08, §§ 45 and 47-52, 20 May 2010).

72.  It follows that the Government’s objection as to the exhaustion of domestic remedies must be rejected.

73.  The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a)  The applicant

74.  The applicant reiterated his main argument that he lived in Prague and thus, in accordance with Annex C to the Istanbul Convention on Temporary Admission, he had not been bound to pay the taxes in question when he had visited Croatia in his car, duly registered in the Czech Republic. If he had been obliged to do so, he should and would have been stopped by Croatian customs officials at the border crossing when entering Croatia and instructed either to pay those taxes or to return to the Czech Republic. Therefore, his failure to pay the customs debt for the alleged importation of his car had not been in breach of customs regulations and thus could not constitute an offence. Yet, he had been convicted of the customs-related administrative offence specified in section 241(1) subparagraph 10 of the Customs Act (see paragraphs 22-23 and 29 above). That was so only because the domestic authorities had misinterpreted the term “persons resident” in the Istanbul Convention as “persons having domicile”, which had a different meaning in the domestic legislation. He explained that the Istanbul Convention, in its official text, did not refer to “domicile” but to “living” abroad and that the meaning given to certain legal terms in domestic legislation could not be relied on in interpreting the same or similar terms used in international agreements. Therefore, the fact that while living in Prague he could have, in the eyes of Croatian authorities, retained his domicile in Croatia was not relevant. What mattered for the application of the Istanbul Convention was whether he lived in the Czech Republic or in Croatia.

75.  In the applicant’s view it was evident from the documents produced in the proceedings both before the domestic authorities and before the Court that he resided in the Czech Republic. In particular, those documents showed that: (a) he had been living in Prague since 18 November 2000 when the Czech authorities had granted him a visa for an extended stay; (b) he had been granted the right to reside permanently in the Czech Republic on 18 February 2008; (c) he did not pay income tax in Croatia; (d) he had health insurance in the Czech Republic and not in Croatia; (e) he rented a flat in Prague; and (f) his wife lived in Prague, where she worked for a Czech company through which he had a pension and health insurance.

76.  The applicant further submitted that it was well known that on a daily basis, and especially at weekends and during holidays, thousands and sometimes hundreds of thousands of Croatian citizens, mostly (but not only) guest-workers temporarily employed in Austria, Germany, Switzerland, Italy or neighbouring countries, entered Croatia in their cars registered abroad. In his view, the Government had not explained how all those people, who were in the same or a similar situation to his, did so without being fined and having their cars impounded.

77.  Lastly, the applicant added that he was disabled, with a degree of disability of 100%, and could not walk without help. The car for the importation of which he had been fined and which had been impounded was specially adapted to his needs and in fact served as an orthopaedic aid for him.

(b)  The Government

78.  The Government argued that: (a) the applicant had been convicted of a customs-related administrative offence prescribed in the relevant domestic legislation after the relevant domestic authorities had established that all elements of the offence existed in his case; (b) the applicant did not tempore criminis, meet the conditions for temporary admission, that is, for exemption from payment of customs duties, set out in the Istanbul Convention because, having his domicile in Zagreb, he could not be considered a “person resident” outside Croatia for the purposes of that Convention; (c) the Croatian authorities had consistently interpreted the term “person resident” in the Istanbul Convention in accordance with the definition of domicile provided in the relevant domestic legislation; and (d) the applicant had subsequently de-registered his domicile exclusively in order to avoid paying the taxes levied on the importation of his car and the fine imposed.

79.  In particular, the Government submitted that the applicant had been found guilty of the customs-related administrative offence defined in section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 above) and had received a fine within the statutory range only after the relevant domestic authorities had found in the administrative offence proceedings that his acts had all the elements of the offence in question.

80.  As regards the applicant’s main argument that he had not been required to pay the customs duty for the importation of his car and thus had not committed any offence, and that his conviction for the administrative offence in question had resulted from a wrong interpretation by the domestic authorities of the term “persons resident” in the Istanbul Convention on Temporary Admission (see paragraphs 62 and 74 above), the Government noted that Article 1 of the Istanbul Convention did not define the (autonomous) meaning of that term, as it did with some other terms employed in that Convention (see paragraph 45 above). In the Government’s view, that meant that it was left to the States Parties to the Istanbul Convention to give meaning to that term themselves, that is, to interpret it independently, in accordance with their own legislation. The Croatian authorities had decided to interpret the term by equating it with the notion of domicile (prebivalište), which, according to the Domicile and Residence of Citizens Act, is the place where a citizen has settled with an intention of permanently living there (see paragraph 32 above). Those authorities had considered the notion of domicile the most appropriate because it was the only one that denoted more permanent connection of Croatian citizens with their homeland.

81.  The Government also emphasised that the Croatian authorities had uniformly and consistently interpreted the term “persons resident” in the Istanbul Convention by equating it with the notion of domicile as defined in the Domicile and Residence of Citizens Act (see paragraphs 47-50 above).

82.  The Government further explained that temporary admission as provided for in Article 5 of Annex C to the Istanbul Convention (see paragraph 45 above), that is, the privilege of not having to pay customs duties, applied only to those who temporarily brought a car into the State for their personal use, while having their domicile or seat in a State different from the State into which the car was being brought and having the car registered in that State. Furthermore, section 241(1) subparagraph 10 of the Customs Act prescribed that treating goods which did not meet the conditions for temporary admission set forth in the Istanbul Convention as if they did was an administrative offence punishable by a fine (see paragraph 29 above). Given that at the time of the commission of the offence, that is, when the applicant had entered Croatia in his car with foreign licence plates without paying the relevant taxes, he had been a Croatian citizen and had his domicile in Croatia (see paragraph 6 above), he had not satisfied the conditions for temporary admission set forth in Article 5 of Annex C to the Istanbul Convention. By the same token, his failure to pay the taxes due on the importation of his car had also made him liable for the administrative offence specified in section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 above) of which he had eventually been convicted.

83.  Lastly, the Government stated that the applicant had been or should have been aware that his acts constituted an administrative offence. In particular, the applicant’s statement that he had entered Croatia with the intention of de-registering his domicile was (see paragraph 8 above), in the Government’s view, crucial evidence that he had known that having his domicile in Croatia made him ineligible for temporary admission and that by bringing his car to Croatia he had breached customs regulations. In fact, the Government argued, the applicant had never had the intention of de-registering his domicile. Rather, his real intention had been to continue living in Croatia, where he had accommodation and where his family lived, and to go only occasionally to the Czech Republic. He had de-registered his domicile in Croatia only to avoid paying the customs debt and escape liability for it. Thus, even though he had allegedly entered Croatia in order to de-register his domicile, he had not done so until 17 June 2008 (see paragraph 10 above), that is, six days after entering (see paragraph 8 above), and one day after the police had impounded his vehicle and the customs proceedings against him had commenced (see paragraphs 9 and 12 above). Moreover, on 15 September 2008, that is, only two months after he had de-registered his domicile, the applicant had re-registered it at the same address (see paragraph 11 above).

84.  For these reasons the Government invited the Court to find that there had been no violation of Article 7 of the Convention.

2.  The Court’s assessment

(a)  Applicability

85.  Even though the Government did not contest the applicability of Article 7 to the facts of the present case, the Court nevertheless considers that it has to examine this issue of its own motion.

86.  In order to determine whether Article 7 is applicable, the Court has to determine whether the offence for which the applicant was fined was “criminal” within the meaning of that Article. In so doing the Court will have regard to the three alternative criteria laid down in the Engel case (see Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22, and Jussila v. Finland [GC], no. 73053/01, §§ 30-31, ECHR 2006-XIV): (a) the classification of the offence under the domestic law, (b) the nature of the offence, and (c) the nature and degree of severity of the penalty that the person concerned risks incurring. The first criterion is of relative weight and serves only as a starting-point. If domestic law classifies an offence as criminal, then this will be decisive. Otherwise the Court will look behind the national classification and examine the offence in the light of the second and/or third criteria. Even though these criteria were initially developed for the purposes of determining the applicability of Article 6 of the Convention under its “criminal head”, they are equally pertinent to the issue of the applicability of Article 7 (see Nadtochiy, cited above, § 32).

87.  As to the legal classification of the offence under the domestic law, the Court notes that the behaviour for which the fine was imposed on the applicant is formally classified as an administrative rather than a criminal offence under Croatian law. This follows from the fact that the fine imposed on the applicant was based on section 241(1) of the Customs Act (see paragraph 29 above) and not on provisions of the Criminal Code; that such a fine is not entered in a person’s criminal record; and that its amount does not depend on income, as in criminal law. However, since the classification of the offence under the domestic law is of relative value only, the Court must further examine the offence in question in the light of the second and third criteria mentioned above (see the preceding paragraph).

88.  As to the nature of the offence in question, the Court notes that the offence for which the applicant was fined was defined in the Customs Act (see paragraph 29 above), that is, in legislation that applied to the whole population (to anyone who crossed the border) and not just to a particular group. What is more, the fine imposed on the applicant was punitive in nature as it was not intended to serve as pecuniary compensation for unpaid customs duties but as a penalty to deter reoffending. The Court finds these elements sufficient for a conclusion that the purported customs-related administrative offence was of a criminal character and thus attracted the guarantees of Article 7 of the Convention (see, mutatis mutandis, Nadtochiy, cited above, §§ 21-22, and Jussila, cited above, § 38).

89.  This conclusion is further reinforced by the fact that the penalty the applicant risked incurring was rather severe as it amounted to HRK 100,000[3] (see section 241(1) of the Customs Act in paragraph 29 above), it being understood that the actual penalty imposed on the applicant is relevant but cannot diminish the importance of what was initially at stake (see, for example, Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 120, ECHR 2003-X).

(b)  As to whether there was a violation of Article 7 of the Convention

(i)  General principles

90.  The Court reiterates th e relevant principles summarised in the Vasiliauskas case (cited above, §§ 153-155):

“153. ... the guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 in time of war or other public emergency. It should be construed and applied, as follows from its object and purpose, in such a way as to provide effective safeguards against arbitrary prosecution, conviction and punishment (...).

154. Accordingly, 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. It follows from these principles that an offence must be clearly defined in the law, be it national or international. 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. The Court has thus indicated that when speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises written as well as unwritten law and implies qualitative requirements, notably those of accessibility and foreseeability (...).

155. The Court reiterates that however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the Convention States, the progressive development of the criminal law through judicial interpretation is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen (...).”

91.  The Court further reiterates that its task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, for example, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008). In this connection it refers to the view of the former Commission, best summarised in the case of J.J.M. v. the United Kingdom (no. 4681/70, Commission decision of 3 October 1972, Collection 43, p. 1; see also X. v. Federal Republic of Germany, no. 1169/61 Commission decision of 24 September 1963, Yearbook 6, p.p. 520; and 588; X. v. Austria, no. 1852/63, Commission decision of 22 April 1965, unreported), according to which:

 “Although it is not normally for the Commission to ascertain the proper interpretation of municipal law by national courts, the case is otherwise in matters where the Convention expressly refers to municipal law, as it does in Article 7. Under Article 7 the application of the provision of municipal penal law to an act not covered by the provision in question directly results in a conflict with the Convention, so that the Commission can and must take cognisance of allegations of such false interpretation of municipal law. The Commission’s supervisory function, therefore, consists in making sure that, at the moment when the accused person performed the act which led to his being prosecuted, there was in force a legal provision which made that act punishable and that the punishment imposed does not exceed the limits fixed by that provision. ... [T]his supervisory function further consists in considering whether the national court, in reaching its decision, has not unreasonably interpreted, and applied to the applicant, the municipal law concerned.”

92.  This view was reaffirmed by the Court in the case of Kononov v. Latvia, where it held that while it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation, so that the Court’s role was confined to ascertaining whether the effects of such an interpretation were compatible with the Convention, the position was different and the Court’s powers of review greater when it was not the domestic legislation but the Convention itself, in particular Article 7, which expressly referred to the domestic law, that is, required that there should be a legal basis for a conviction and sentence. In such cases, a failure to comply with the domestic legislation could in itself entail a violation of the Convention. Accordingly, in such circumstances the Court had to have jurisdiction to decide whether the relevant provision of criminal law had been complied with as its application to an act not covered by that provision would directly result in a conflict with Article 7 of the Convention. In the Court’s view, to accord it a lesser power of review would render Article 7 devoid of purpose. The Court also held that the same principle applied to situations where the domestic courts had applied international law (see Kononov v. Latvia [GC], no. 36376/04, § 198, ECHR 2010, with further reference to Kononov v. Latvia, no. 36376/04, § 110, 24 July 2008, that is, to the Chamber judgment in the same case).

(ii)  Application of the above principles to the present case

93.  In the light of the above principles concerning the scope of its supervision, the Court considers that its task in the present case is to examine whether the relevant law was foreseeable, that is, whether the applicant’s act, at the time when it was committed, constituted an administrative offence defined with sufficient precision by domestic and/or international law (see, mutatis mutandis, Korbely, cited above, § 73) to be able to guide the applicant’s behaviour and prevent arbitrariness. In so doing the Court must ascertain whether the applicant could have known from the wording of the relevant provision - and, if need be, with the assistance of the domestic authorities’ interpretation of it and with informed legal advice - what acts or omissions would make him liable for the offence (see, mutatis mutandis, Vasiliauskas, cited above, § 154). Given that foreseeability also requires that a rule affords a measure of protection against arbitrary interferences by the public authorities (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012), the Court must also ascertain whether the relevant law was sufficiently clear to provide, in accordance with the object and purpose of Article 7 of the Convention, effective safeguards against arbitrary prosecution, conviction or punishment (see Vasiliauskas, cited above, § 153).

94.  In this connection the Court first observes that the applicant was found guilty of, and fined for, having committed the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 above). That provision prohibited the importation of goods without payment of the relevant customs duties and taxes under the pretext that the imported goods satisfied the criteria for the exemption known as temporary admission. Its wording suggests that it was a blanket provision, that is, a legal norm which should have been construed in the light of the relevant provisions on temporary admission contained in the Istanbul Convention or elsewhere in the Customs Act.

95.  The Court further observes that Article 5 of Annex C to the Istanbul Convention on Temporary Admission provides that temporary admission is to be granted in respect of those vehicles for private use which are: (a) registered in a territory other than that of temporary admission in the name of a person established or resident in a territory other than that of temporary admission, and (b) imported and used by persons resident in such a territory (see paragraph 45 above).

96.  Given that at the time he brought his car into Croatia, the applicant had his domicile registered in Croatia but, at the same time, had been granted the right to reside permanently in the Czech Republic (see paragraphs 6 and 8 above), the crucial question is whether he was to be considered a resident of Croatia (or of the Czech Republic) for the purposes of Article 5 of Annex C of the Istanbul Convention.

(α)  As regards the issue whether the wording of the relevant provision was sufficiently clear

97.  In this regard, it is first to be noted that the term “persons resident” appears twice in the text of Article 5 of Annex C to the Istanbul Convention and that in the Croatian version of that Convention, published in the Official Gazette - International Agreements, the same term is translated on its first occurrence as “osobe s prebivalištem” (“persons having domicile”) and on its second occurrence as “osobe koje žive” (“persons living” or “persons who live”) (see paragraphs 45-46 above). This inconsistency in translation indeed makes the meaning of the term in question ambiguous as it could mean either domicile or residence, it being understood that those terms legally do not have the same meaning not only under Croatian law (see paragraphs 31-32 above) but also in a number of countries (see the relevant Council of Europe instrument in paragraph 60 above). This ambiguity is further compounded by the fact that, from a strictly linguistic point of view, the more accurate translation into Croatian of the English term “persons resident” or the French term “personnes résidant” appearing in the original versions of the Istanbul Convention is “osobe s boravištem” (“persons having residence”) rather than “osobe s prebivalištem” (“persons having domicile”). Croatian versions or translations of international or European law instruments that refer to the same or similar terms do not provide any assistance in this matter (see paragraphs 59 and 61 above). Therefore, in the Court’s view, the wording of the relevant provision, and particularly its official translation into Croatian, gives rise to uncertainty and ambiguity as to who may benefit from the exemption, more specifically whether the decisive element is domicile or residence.

98.  Having regard to its case-law in the matter (see paragraphs 90 and 93 above), the Court must further examine whether the meaning of the term “persons resident” in the text of Article 5 of Annex C to the Istanbul Convention was elucidated through an interpretation by the domestic authorities.

(β)  As regards the issue whether the meaning of the relevant provision was clarified through interpretation by the domestic authorities

99.  The Government argued (see paragraph 80 above) that, because the Istanbul Convention in its Article 1 did not provide an autonomous definition of the term “persons resident”, it was left to the States to give meaning to that term themselves, and that Croatian authorities had decided to interpret the term by equating it with the notion of domicile (prebivalište). In their view any ambiguity as to the meaning of the term “persons resident” had been dispelled by the fact that those authorities had uniformly and consistently interpreted it as “persons having domicile”, where the notion of domicile was construed in the light of the relevant domestic legislation, in particular with regard to the definition of domicile in the Domicile and Residence of Citizens Act (see paragraphs 80-81 above).

100.  In this connection the Court first notes that the practice submitted by the Government (see paragraphs 47-50 above) seems to suggest that the Customs Administration, the High Court for Administrative Offences and the Administrative Court in the period between 18 January 2006 and 18 May 2011 interpreted the term “persons resident” in Article 5 of Annex C to the Istanbul Convention as “persons having domicile”, and in so doing referred to the definition of domicile provided in the Domicile and Residence of Citizens Act. However, the decision of the Customs Administration of 23 May 2006, the decisions of the Ministry of Finance of 6 July 2006 and 9 January 2008 and the judgments of the Administrative Court of 31 July 2008 and 9 September 2009 (see paragraphs 55-57 above) appear to suggest that the same term is to be interpreted in accordance with the notions of fiscal domicile and habitual residence as defined in the General Tax Act (see paragraph 31 above). Moreover, the opinions of the Customs Administration issued in the period between 19 December 2006 and 10 January 2013 (see paragraphs 51-52 above), as well as its press release of 4 April 2011 (see paragraph 53 above) and instruction of 1 June 2011 (see paragraph 54 above) indicate that the term in question is to be understood as meaning “persons having habitual residence” and that vehicles with foreign licence plates driven in the territory of Croatia by Croatian nationals who have their habitual residence abroad are to be exempted from import duties (see paragraphs 51-54 above). What is more, the Instruction of 1 June 2011 states in its introductory part that it was issued with a view to removing doubts and uncertainties and in order to harmonise procedures relating to the application of Annex C to the Istanbul Convention in the context of the use of cars with foreign licence plates in the customs territory of Croatia (see paragraph 54 above).

101.  If the term “persons resident” referred to in Article 5 of Annex C to the Istanbul Convention is to be understood as meaning persons having habitual residence (rather than persons having (registered) domicile), as the above opinions, the press release and the instruction of the Customs Administration suggest, then the outcome of the applicant’s case could have been different. That is so because in the proceedings the applicant complained of the domestic authorities had established that he did not at the relevant time pay income tax or have health insurance in Croatia, and that he was in possession of a valid residence permit issued by the Czech authorities (see paragraphs 20 and 22-23 above). Under the Czech law (see paragraph 42 above) that permit could not have been granted if in the five years before obtaining it (18 February 2008 - see paragraph 6 above) the applicant had been absent from the Czech Republic for more than six consecutive months, or for more than ten months altogether. Against this factual background it was at least arguable that at the time he did have habitual residence in the Czech Republic.

102.  In view of the above it cannot but be concluded that the practice of the domestic authorities in interpreting the term “persons resident” in Article 5 of Annex C to the Istanbul Convention was inconsistent at the time when the applicant allegedly committed the offence.

103.  In this connection the Court finds it evident that an interpretation capable of clarifying the meaning of an otherwise insufficiently clear provision which serves as the legal basis for an offence must, in order to comply with the requirements of Article 7, result from a practice (case-law) of the domestic authorities which is consistent. That is so because an inconsistent case-law lacks the required precision to avoid all risk of arbitrariness and enable individuals to foresee the consequences of their actions (see paragraph 93 above).

104.  This principle was initially enunciated in the context of complaints under Article 1 of Protocol No. 1 to the Convention for the purposes of establishing whether an interference with the right of property was foreseeable and thus “provided for by law” within the meaning of that Article (see Belvedere Alberghiera S.r.l. v. Italy, no. 31524/96, § 58, ECHR 2000-VI; Carbonara and Ventura v. Italy, no. 24638/94, § 65, ECHR 2000-VI; Mullai and Others v. Albania, no. 9074/07, §§ 115-117, 23 March 2010; Saghinadze and Others v. Georgia, no. 18768/05, §§ 116-118, 27 May 2010; Brezovec v. Croatia, no. 13488/07, § 67, 29 March 2011; and Matić and Polonia d.o.o. v. Serbia (dec.), no. 23001/08, § 47, 23 June 2015). In an even more specific context of taxation, under the same Article, the Court has also held that the lack of the required clarity and precision of the domestic law, offering divergent interpretations on an important fiscal issue, upset the requirement of the “quality of law” under the Convention and did not provide adequate protection against arbitrary interference by the public authorities with property rights (see Shchokin v. Ukraine, nos. 23759/03 and 37943/06, § 56, 14 October 2010; and Serkov v. Ukraine, no. 39766/05, § 42, 7 July 2011).

105.  The Court considers that this principle applies a fortiori in the context of Article 7 of the Convention (see Matić and Polonia d.o.o., cited above, § 50), given that its object and purpose is to provide effective safeguards against arbitrary prosecution, conviction or punishment (see, among many other authorities, Vasiliauskas, cited above, § 153). No person should be forced to speculate, at peril of conviction, whether his or her conduct is prohibited or not, or to be exposed to unduly broad discretion of the authorities, in particular if it was possible, either by drafting legislation in more precise terms or through judicial interpretation, to specify the relevant provision in a way that would dispel uncertainty.

(γ)   Conclusion

106.  In conclusion, the Court reiterates that the wording of Article 5 of Annex C to the Istanbul Convention, and its Croatian translation in particular, gives rise to uncertainty and ambiguity (see paragraph 97 above), and that the interpretation of that provision by the domestic authorities was at the relevant time inconsistent (see paragraph 100-102 above) and therefore lacked the required precision. As a result thereof, the applicant was, even with informed legal advice, unable to distinguish between permissible and prohibited behaviour and thus unable to foresee, with the degree of certainty required by Article 7 of the Convention, that entering Croatia in his car, while arguably having a habitual residence in the Czech Republic, would constitute an offence (see paragraphs 93 and 104-105 above). By the same token, the room left to those authorities for the interpretation and application of Article 5 of Annex C to the Istanbul Convention was too wide to provide effective safeguards against arbitrary prosecution, conviction or punishment (see paragraph 93 above).

II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

107.  The applicant also complained, without relying on any provision of the Convention or its Protocols, about the confiscation and sale of his car.

108.  The Court considers that this complaint falls to be examined under Article 1 of Protocol No. 1 to the Convention, which reads 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.”

109.  The Government disputed the admissibility of this complaint on two grounds. They argued that the applicant had failed to exhaust domestic remedies, and that this complaint was, in any event, manifestly ill-founded.

110.  The Court does not find it necessary to reproduce the parties’ arguments in detail as this complaint is in any event inadmissible for the following reasons.

111.  In his observations of 22 October 2011 the applicant explained that before the Court he did not complain of the above-described administrative proceedings (see paragraphs 12-18 above) but only of the administrative offence proceedings (see paragraphs 19-25 above). In particular, in reply to the Government’s non-exhaustion objection the applicant unequivocally stated:

“... the applicant contests before the Court only the decisions of the State authorities and courts relating to the customs offence, but does not contest the decisions of the administrative and judicial authorities adopted in the administrative proceedings concerning payment of the custom debt.”

112.  That being so, and given that the confiscation and sale of the applicant’s car occurred in the context of the administrative proceedings and not in the (administrative offence) proceedings actually complained of by the applicant, it follows that this complaint is inadmissible under Article 35 § 3 (a) of the Convention as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 thereof.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

113.  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.”

114.  The Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow - or allows only partial - reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court first notes that, having regard to section 82(3) of the Administrative Offences Act (see paragraph 38 above), the applicant can now, relying on sections 214-216 of the same Act (see paragraph 39 above) in conjunction with section 502(1) of the Criminal Procedure Act (see paragraph 41 above), file a petition with the High Court for Administrative Offences for the reopening of the administrative offence proceedings in respect of which the Court has found a violation of Article 7 of the Convention. The Court also notes that under section 220 of the Administrative Offences Act (see paragraph 40 above), read in conjunction with section 509 of the Criminal Procedure Act (see paragraph 41 above), the State Attorney must lodge a request for the protection of legality if a judicial decision adopted in administrative offence proceedings entailed a violation of human rights.

115.  Given the nature of the applicant’s complaint and the reasons for which it has found a violation of Article 7 of the Convention, the Court considers that in the present case the most appropriate way of redressing it would be to reopen the proceedings complained of.

116.  Having regard to the foregoing, and given that the applicant’s representative did not submit a claim for just satisfaction, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint under Article 7 admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 7 of the Convention.

Done in English, and notified in writing on 4 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith                                                                     Işıl Karakaş
       Registrar                                                                              President

 




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[1] Approximately 71,251 euros (EUR) at the time.

[2] Approximately, EUR 690 at the time.

[3] Approximately, EUR 14,010 at the time.