FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35779/03 
by MAC-STRO S.R.L. 
against Moldova

The European Court of Human Rights (Fourth Section), sitting on 28 February 2006 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr G. Bonello
 Mr K. Traja
 Mr S. Pavlovschi
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mrs F. Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 10 September 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, “MAC-STRO” S.R.L., is a company incorporated in Moldova.

A.  The circumstances of the case

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

On 4 July 2002 the applicant company (the applicant) bought goods, which were valued at 180,921 Moldovan lei (MDL) (the equivalent of 13,352.1 euros (EUR) at the time), from a Ukrainian company.

On 8 July 2002 the applicant’s merchandise crossed the Moldovan border. On 12 July 2002 the applicant registered a customs declaration at the Chişinău Customs Office.

On 2 August 2002 the Customs Department fined the applicant for failure to declare the imported goods within the legal time limit of 72 hours from the moment of crossing the border. The fine was imposed in accordance with the provisions of the Customs Code (see “Domestic Law” below) and represented forty percent from the total value of the goods and was set at an amount of MDL 72,368.40 (the equivalent of EUR 5,461.64 at the time).

The applicant’s representative was also fined for failure to present relevant documents for the imported goods within the same legal time limit. The fine was imposed in accordance with the provisions of the Code of Administrative Offences and was set at an amount of MDL 180 (the equivalent of EUR 13.58 at the time).

On 16 September 2002 the applicant brought an action against the Customs Department, seeking the annulment of the decision in respect of the fine imposed on it.

On 22 November 2002 the Chişinău Regional Court ruled in favour of the applicant and annulled the Customs Department’s decision in respect of the applicant. The latter lodged an appeal against the judgment.

On 3 June 2003 the Court of Appeal upheld the appeal lodged by the Customs Department and dismissed the applicant’s action. During the proceedings, the applicant’s representative admitted its failure to observe the legal time limit for lodging the customs declaration and gave reasons for the failure, but the Court of Appeal considered those reasons as irrelevant.

B.  Relevant domestic law

The relevant provisions of the Customs Code of the Republic of Moldova of 20 July 2000 read as follows:

“Article 176. Customs declaration filing deadlines

1. Customs declaration shall be filed within 72 hours following the crossing of the customs frontier. (...)

...

Article 231. Types of Customs Regulations infringements which entail material liability

The following Customs Regulations infringements shall entail material liability:

...

3) a failure to declare goods crossing the customs frontier according to the established procedure, or a false declaration, in the absence of elements constituting smuggling or other crimes; (...)

...

Article 232. Penalties for Customs offences which entail material liability

Legal entities and entities engaged in business activities without being incorporated as legal entities when committing offences specified in:

a) Article 231(1)-(4), shall be subject to a fine in an amount equivalent to 40 to 100 percent of the value of goods which constitute the object of the offence with or without licence revocation;”

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that by dismissing its action against the Customs Department it had been deprived of its right of access to court. It also complained about the excessive length of the domestic proceedings.

THE LAW

Article 6 § 1 of the Convention provides, insofar as relevant, the following:

“In the determination of his civil rights and obligations ...or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

As to the applicability of Article 6 under its criminal head, the Court considers that the proceedings concerning the fine imposed by the Customs Department on the applicant involved a determination of a “criminal charge” within the meaning of Article 6 of the Convention (Janosevic v. Sweden, no. 34619/97, § 71, ECHR 2002-VII).

Insofar as the compliance with Article 6 § 1 is concerned, the Court notes that the applicant could bring the Customs Department’s decision before a judicial body that had full jurisdiction, including the power to quash in all respects, on questions of fact and law, the challenged decision. Accordingly, it had access to a court (see, mutatis mutandis, Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, pp. 19-20, § 46, and Umlauft v. Austria, judgment of 23 October 1995, Series A no. 328-B, pp. 39-40, §§ 37-39).

The Court recalls that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see, inter alia, the Brualla Gómez de la Torre v. Spain judgment of 19 December 1997, Reports 1997-VIII, p. 2955, § 31; and Edificaciones March Gallego S.A. v. Spain judgment of 19 February 1998, Reports 1998-I, p. 290, § 33). Inasmuch as the applicant’s representative was present at the proceedings before the Court of Appeal and admitted the failure to observe the legal time limit for lodging the customs declaration, it is noted that nothing in the present case discloses an appearance of arbitrariness in the courts’ appreciation of the applicant’s reasons for omission of the legal time-limit for submitting the customs declaration. The Court therefore reaches the conclusion that there is nothing in the present case to suggest that the proceedings were unfair under Article 6 § 1 of the Convention.

As to the applicant’s complaint about the excessive length of the proceedings, it is noted that the proceedings, including the preliminary administrative proceedings, lasted for ten months, during which period the case was examined by two instances and no special circumstances which would require particular expedition were observed (see, inter alia, Kroenitz v. Poland, no. 77746/01, § 22, 25 February 2003).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares the application inadmissible.

Françoise Elens-Passos Nicolas Bratza Deputy Registrar President

MAC-STRO S.R.L.  v. MOLDOVA DECISION


MAC-STRO S.R.L.  v. MOLDOVA DECISION