EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF MARKIN v. RUSSIA
(Application No. 59502/00)
JUDGMENT <*>
(Strasbourg, 30.III.2006)
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Markin v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on 9 March 2006,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 59502/00) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by a Russian national, Mr Mikhail
Nikolayevich Markin ("the applicant"), on 1 July 2000.
2. The applicant, who had been granted legal aid, was
represented by Mr Y. Kareyev, a lawyer practising in Ufa. The
Russian Government ("the Government") were represented by their
Agent, Mr P. Laptev, the Representative of the Russian Federation
at the European Court of Human Rights.
3. The applicant alleged that following an unlawful
confiscation of his car a customs board had failed to return his
car or pay him compensation.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 16 September 2004, the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
7. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1936 and lives in Kumertau in the
Republic of Bashkortostan.
A. Confiscation of the applicant's car
9. In September 1994 the applicant purchased an imported second-
hand car from a third person. Subsequently, the Bashkir Customs
Board ("the Customs") discovered that the car had been customs
cleared by its previous owner on the basis of forged documents for
which reason, on 13 May 1997, it confiscated the car pursuant to
Article 280 of the Customs Code.
10. Upon the applicant's challenge on 15 May 1997 to the
Customs' decision, seeking to declare the decision to seize the
car unlawful, the Sovetskiy District Court of Ufa upheld the
Customs' decision on 24 June 1997. The judgment was final and not
subject to appeal.
11. On an unspecified date the applicant requested the Supreme
Court to examine the case anew under a supervisory-review
procedure. On 5 February 1999 the Presidium of the Supreme Court
of Bashkortostan allowed the application, set aside the judgment
and remitted the case for re-examination.
12. By judgment of 19 March 1999 the Sovetskiy District Court
held in the applicant's favour. It found it established that the
applicant had not known that the customs clearance was improper
for which reason the court quashed the Customs' decision of 13 May
1997 as unlawful. The judgment was final and not subject to
appeal.
13. Following a subsequent successful supervisory-review
request submitted by the Customs, the above judgment of 19 March
1999 was quashed and the case remitted once more to the Sovetskiy
District Court for consideration. By judgment of 28 April 2000
this court held in favour of the Customs and dismissed the
applicant's challenge to the Customs' decision of 13 May 1997.
14. Following yet another supervisory review the Supreme Court
of the Russian Federation on 3 June 2002 quashed the above
judgment of 28 April 2000 and re-instated the judgment of 19 March
1999 which granted the applicant's complaint that the Customs'
decision of 13 May 1997 was unlawful.
B. The State's failure to return the applicant's car
15. According to the applicant, since his request for recovery
of the car lodged with the Customs on 24 April 1999 had been to no
avail, on 3 June 1999 he unsuccessfully attempted to file a suit
against the Customs before the Sovetskiy District Court of Ufa
seeking, inter alia, the restitution of his car and non-pecuniary
damages. He then unsuccessfully attempted to bring many actions
against courts, including the Sovetskiy District Court of Ufa, and
individual judges accusing them of libel, incompetence, and
obstruction of justice. However, he has failed, according to
information available to the Court, properly to institute
proceedings with a view to obtain compensation for the relevant
losses.
16. According to the Government, the car was not returned to
the applicant because it had been sold following its confiscation
in accordance with the legislation of the Russian Federation.
II. Relevant domestic law
17. Article 280 of the Customs Code of 1993 establishes the
responsibility for non-compliance with the rules for importing
goods:
"Transportation, storage and acquisition of goods and vehicles
imported into the customs territory of the Russian Federation
without due customs control, or avoiding such control, or with
fraudulent use of documents or identification means, or with a
violation of declaration rules... shall be penalised by a fine in
the amount ranging from fifty to two hundred per cent of the cost
of the goods and vehicles, which are the object of the offence,
with or without their confiscation, or with the recovery of the
cost of such goods and vehicles, or with or without the revocation
of a licence."
18. The applicant's appeal of 15 May 1997 against the Board's
decision of 13 May 1997 was lodged under Article 239 of the then
Code of Civil Procedure which introduced judicial review of
executive decisions. Article 239 in force at the material time
read as follows:
Article 239. Decision of Court taken upon appeal
A court, having established that the order of an administrative
agency or official is unlawful, shall take a decision to allow the
appeal.
If the amount of the imposed fine exceeds the limit set by the
legislation, the court shall reduce the amount of the fine down to
the set limit. If the fine is imposed without consideration of the
seriousness of the committed malefaction, personal characteristics
of the guilty person and his economic situation, the court may
reduce the amount of the fine.
If acts of an administrative agency or official are lawful, the
court shall take a decision to deny the appeal.
19. The Federal Law N 4866-1 On Judicial Appeal against Acts
and Decisions Infringing Individual Rights and Freedoms dated 27
April 1993, provides for a judicial avenue for claims against
public authorities. It states that any act, decision or omission
by a state body or official can be challenged before a court if it
encroaches on an individual's rights or freedoms or unlawfully
vests an obligation or liability on an individual. In such
proceedings the court is entitled to declare the disputed act,
decision or omission unlawful, to order the public authority to
act in a certain way {vis-a-vis} the individual, to lift the
liability imposed on the individual or to take other measures to
restore the infringed right or freedom. If the court finds the
disputed act, decision or omission unlawful this gives rise to a
civil claim for damages against the State.
20. Damage caused to an individual as a result of an unlawful
imposition of administrative penalty in the form of arrest or
corrective works is compensated pursuant to Article 1070 of the
Russian Federation Civil Code, and in all other instances of
damages caused to an individual by unlawful acts (inaction) of the
State agencies or officials thereof is compensated according to
the rules set by Article 1069 of the Russian Federation Civil
Code. These provisions read as follows:
Article 1070. Liability for harm caused by unlawful actions of
agencies of inquiry, preliminary investigation, the prosecutor's
office and the court
1. Harm caused to an individual as a result of unlawful
conviction, unlawful bringing to criminal responsibility, unlawful
application as a measure of restraint of remand in custody or of a
written undertaking not to leave a specified place, unlawful
imposition of an administrative penalty in the form of arrest or
corrective labour, shall be compensated in full at the expense of
the treasury of the Russian Federation and in cases, stipulated by
law, at the expense of the treasury of the subject of the Russian
Federation or of the municipal authority, regardless of the fault
of the officials of agencies of inquiry, preliminary
investigation, prosecutor's offices or courts in the procedure
established by law.
2. Harm caused to an individual or a legal entity as a result
of the unlawful activity of agencies of inquiry, preliminary
investigation, prosecutor's offices, which has not entailed the
consequences, specified by paragraph 1 of this Article, shall be
compensated on the grounds and in the procedure, provided for by
Article 1069 of this Code. Harm caused during the administration
of justice shall be compensated in cases, if the fault of a judge
has been established by the court's judgment that has entered into
legal force.
Article 1069. Liability for harm caused by state bodies, local
self-government bodies, and also their officials
Harm caused to an individual or a legal entity as a result of
unlawful actions (inaction) of state and local self-government
bodies or of their officials, including as a result of the
issuance of an act of a state or self-government body inconsistent
with the law or any other legal act, shall be subject to
compensation. Harm shall be compensated at the expense,
respectively, of the treasury of the Russian Federation, the
treasury of the subject of the Russian Federation, or the treasury
of the municipal authority.
21. The above damage is compensated pursuant to a procedure
established by law. Until now the procedure has not been
established by the legislature. In practice, while deciding upon
such issues the courts are guided by the Decree of the Presidium
of the USSR Supreme Soviet of 18 May 1981 on Compensation of
damage caused to citizen by unlawful acts of state and non-
government organisations, as well as by officials while performing
their official duties. Regulations on procedure to compensate
damage were approved by that Decree.
22. Pursuant to the above compensation of damage is effected
pursuant to an application of an individual to a court or any
other authority which has the responsibility to order
compensation.
THE LAW
23. The applicant complained under Article 1 of Protocol No. 1
to the Convention that, despite the final judgment of the
Sovetskiy District Court of 19 March 1999, the Customs Board had
neither returned the car to him, nor had it - in the alternative -
compensated him in the form of damages equivalent to the car's
value at the relevant time. Article 1 of Protocol No. 1 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."
THE GOVERNMENT'S PRELIMINARY OBJECTION
24. As it did prior to the Court's decision on admissibility of
16 September 2004 the Government maintained that the applicant had
not exhausted domestic remedies as required by Article 35 з 1 of
the Convention. They contended that proceedings instituted by the
applicant pursuant to Article 239 of the Code of Civil Procedure
only determined the lawfulness of the Customs' decision of 13 May
1997. By judgment of 19 March 1999 the Customs' decision was found
unlawful. The question of the consequences of such a finding of
the court was not resolved in those proceedings. In the
Government's view, in order to comply with Article 35 з 1 of the
Convention, the applicant should have, subsequently, lodged a
separate civil action under Article 1069 of the Civil Code and the
Decree of 18 May 1981.
25. It appears from the applicant's submissions that in his
view he had exhausted all domestic remedies as he had tried,
though unsuccessfully, to file a suit against the Customs for
restitution of his car and non-pecuniary damages and then various
suits against courts and individual judges.
26. The Court recalls from its decision as to the admissibility
of the present application of 16 September 2004 that the question
of exhaustion of domestic remedies was joined to the merits.
Therefore, the Court is now requested to examine this issue before
embarking, if necessary, on an examination of the merits of the
complaint under Article 1 of Protocol No. 1.
27. The Court reiterates that, according to Article 35 з 1 of
the Convention, it may only deal with an issue after all domestic
remedies have been exhausted. While in the context of the
machinery for the protection of human rights the rule of
exhaustion of domestic remedies must be applied with some degree
of flexibility and without excessive formalism, it does not
require merely that applications should be made to the appropriate
domestic courts and that use should be made of remedies designed
to challenge impugned decisions which allegedly violate a
Convention right. It normally requires also that the complaints
intended to be made subsequently at the international level should
have been aired before those same courts, at least in substance
and in compliance with the formal requirements and time-limits
laid down in domestic law (see, among other authorities, Azinas v.
Cyprus [GC], No. 56679/00, з 38, ECHR 2004-III).
The object of the rule on exhaustion of domestic remedies is to
allow the national authorities (primarily the judicial
authorities) to address the allegation made of a violation of a
Convention right and, where appropriate, to afford redress before
that allegation is submitted to the Court (see {Kudla} v. Poland
[GC], No. 30210/96, з 152, ECHR 2000-XI).
28. The Court observes that the facts of the case now before it
look as follows. The applicant's car was confiscated by the
customs in 1997, before the Convention came into force in respect
of Russia. The judicial review of the customs' decision following
the applicant's appeal resulted in upholding that decision. About
two years later following the applicant's successful application
for reopening the case the national court found the customs'
decision unlawful and quashed it. The latter judicial decision was
then quashed, but reinstated three more years later, in 2002. The
car was not recovered by the applicant as it had been sold to
third persons following its confiscation, "in accordance with the
legislation" as the Government claim. The materials in the Court's
possession do not contain information as to when and in what
circumstances the car had been sold. In particular, it is unclear,
whether it had been sold at the time of the courts' verdict
upholding the confiscation order or at the time of the courts'
verdict to the contrary. The applicant has failed to institute
proceedings with a view to obtaining compensation equal to the
value of the car and other possible losses.
29. On the basis of the latter circumstance the Government
submitted that the applicant had failed to exhaust domestic
remedies. The Court notes that in reply the applicant argued that
he had tried to do so. Following his failure properly to institute
such proceedings before the Sovetskiy District Court of Ufa he
tried, equally unsuccessfully, to sue this court and then other
judicial authorities which had dealt with his case.
30. The Court observes that the applicant's initial concern was
the confiscation of his car by the customs authority. The national
court eventually declared this decision unlawful and quashed it.
It was from that moment that the applicant received a right to
restitution of his property and reimbursement of his losses, if
any. In order to exercise that right he requested the customs
authority, as it appears from his submissions though unsupported
by any documentary evidence, to return his car to him. The State
did not voluntarily discharge its corresponding obligation. Thus,
it did not return the car as the latter had been sold to third
persons following its confiscation. Having regard to the system of
domestic remedies, the Court considers that it would be reasonable
to expect that the applicant would next try to assert his right in
court in accordance with the formal requirements and time-limits
laid down in domestic law. Thus, it was open to the applicant, by
virtue of Article 1069 of the Civil Code of the Russian
Federation, to file a civil suit with a view to obtain
compensation for the damage caused by the deprivation of his car.
As the judgment of the Sovetskiy District Court of Ufa of 19 March
1999 established that the car had been confiscated as a result of
the unlawful actions of the customs, it appears that such an
action would not lack real prospects of success. However, the
applicant failed to do so through his own fault and chose to
complain to this Court.
31. In the absence of any plausible objection from the
applicant in respect of the availability or effectiveness of this
remedy, the Court considers that the applicant did not provide the
Russian courts with the opportunity which is in principle intended
to be afforded to a Contracting State by Article 35 of the
Convention, namely the opportunity of addressing, and thereby
preventing or putting right, the particular Convention violation
alleged against it (see, among other authorities, Hentrich v.
France, judgment of 22 September 1994, Series A No. 296-A, p. 18,
з 33, and Remli v. France, judgment of 23 April 1996, Reports of
Judgments and Decisions 1996-II, p. 571, з 33). The objection that
the relevant "effective" domestic remedy was not used by the
applicant in the instant case is therefore well-founded.
32. Consequently, the Court cannot consider the merits of the
case.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Accepts the Government's preliminary objection and therefore
holds that it cannot consider the merits of the case.
Done in English, and notified in writing on 30 March 2006,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
Santiago QUESADA
Deputy Registrar
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