61463/15;31516/16

FIFTH SECTION CASE OF LINGYS AND SHPAKOVSKYY v. UKRAINE (Applications nos. 61463/15 and 31516/16)             JUDGMENT   STRASBOURG 27 November 2025   This judgment is final but it may be subject to editorial revision. In the case of Lingys and Shpakovskyy v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Andreas Zünd, President,  Mykola Gnatovskyy,  Vahe Grigoryan, judges, and Martina Keller, Deputy Section Registrar, Having deliberated in private on 6 November 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.  The case concerns the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention about the allegedly disproportionate sanction imposed on them for failing to make a written declaration in respect of the foreign currency cash they were carrying in excess of the maximum permissible amount when crossing the Ukrainian border. 2.  Following the applicants’ failure to declare part or all of the cash they were carrying across the Ukrainian border, which amounted in both cases to more than 10,000 euros (EUR), the domestic courts found the applicants guilty of breaching customs regulations. In particular, the applicant in application no. 61463/15 was found guilty of breaching customs control procedures in the simplified customs control area under Article 471 of the Customs Code and of failing to declare cash classified as goods under Article 472 of the Customs Code, and the applicant in application no. 31516/16 was found guilty of failing to declare cash classified as goods under Article 472 of the Customs Code. Fines were imposed on the applicants in both cases in the amounts specified in Article 472 of the Customs Code, in so far as domestic law provides that where a person has committed several administrative offences, the penalty imposed is to fall within the limits of the sanction provided for the most serious of the offences committed. Confiscation of the amount exceeding the permitted limit of EUR 10,000 was also ordered in each case (see the Appendix below for further details). The applicants’ arguments that their failure to declare part or all of the money had not been intentional and that the money in issue had been lawfully obtained were disregarded or dismissed by the domestic courts. RELEVANT LEGAL FRAMEWORK 3.  The Customs Code of 13 March 2012, as worded at the material time, provided as follows: Article 471 Violations of the customs control procedure in simplified customs control areas (channels) “1.  Violations of the customs control procedure in simplified customs control areas (channels), as specified by this Code, that is, where an individual who has chosen to go through a green channel is carrying goods that are prohibited from being carried across the customs border of Ukraine or are subject to restrictions in that regard, or is carrying them in quantities exceeding the non-taxable limit set for the movement of such goods across the customs border of Ukraine, – shall be punishable by a fine of one hundred times the minimum personal tax-free allowance and, when direct objects of the offences are goods whose movement across the customs border of Ukraine is prohibited or restricted by the legislation of Ukraine, by their confiscation.” Article 472 Failure to declare goods or vehicles for commercial use “1.  Failure to declare goods or vehicles for commercial use that are being moved across the customs border of Ukraine, that is, failure to declare, in the prescribed form, accurate and authentic information (availability, name or category, quantity, and so on) regarding goods or vehicles for commercial use that are subject to a mandatory declaration when moved across the customs border of Ukraine, – shall be punishable by a fine of 100% of the cost of such goods or vehicles and their confiscation.” THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 4.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 1 of Protocol No. 1 TO THE CONVENTION 5.  The applicants mainly complained that the confiscation of the undeclared cash and the imposition of a fine constituted disproportionate sanctions in customs cases. They relied on Article 1 of Protocol No. 1 to the Convention. 6.  The Government submitted observations in which they acknowledged that there had been an interference with the applicants’ property rights when the domestic authorities had confiscated the undeclared cash from the applicants. However, they argued that the interference had been lawful and proportionate. 7.  The applicants disagreed with the Government, noting that a less severe punishment would have been sufficient to achieve the desired punitive effect and to prevent future violations. 8.  The applicable principles concerning confiscation of property have been summarised in Gabrić v. Croatia (no. 9702/04, §§ 31-33, 5 February 2009). 9.  In the leading case of Yaremiychuk and Others v. Ukraine (nos. 2720/13 and 6 others, 9 December 2021), the Court found a violation in respect of issues similar to those in the present case. 10.  Turning to the circumstances of the present case, the Court notes that, unlike in Yaremiychuk and Others (cited above), when imposing the sanctions, the domestic courts referred to different legal provisions qualifying the undeclared cash as goods. In particular, they referred, in application no. 61463/15, to Articles 471 and 472 of the Customs Code, and in application no. 31516/16, to Article 472 of the Customs Code. Although such an approach resulted in a more severe sanction being imposed on the applicants, it is primarily for the domestic authorities to apply and interpret domestic law (see Ruban v. Ukraine, no. 8927/11, § 43, 12 July 2016, and Jidic v. Romania, no. 45776/16, § 83, 18 February 2020). 11.  As regards the essence of the applicants’ complaint, the Court considers that the sanctions imposed, specifically the confiscation of the undeclared amounts of money (EUR 10,047 and EUR 27,628) and the imposition of a fine of the same amount were substantially disproportionate to the gravity of the offences committed, that is to say, the mere failure to declare the cash in question. Moreover, the domestic courts had no choice but to impose such a sanction, since both the confiscation and the fine were mandatory under the domestic law, Articles 471 and 472 of the Customs Code not leaving any discretion to the courts as regards the sanction to be imposed (see Yaremiychuk and Others, cited above, §§ 30 and 34 in respect of Article 471 of the Customs Code). 12.  In the absence of any relevant arguments on the part of the Government, and regard being had to its leading judgment in Yaremiychuk and Others (cited above), the Court finds that the interference with the applicants’ property rights imposed a disproportionate burden on them in view of the mandatory application of confiscation of all excess cash as the sanction, in addition to a fine. 13.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention. 14.  The Court reiterates in this connection that the finding of a violation does not imply that the applicants should not have borne any responsibility for the breach of the domestic law they had committed by failing to declare the cash (see Sadocha v. Ukraine, no. 77508/11, § 43, 11 July 2019). REMAINING COMPLAINTS 15.  On the basis of the same facts, the applicant in application no. 61463/15 also complained about the quality of the relevant domestic law, specifically the alleged lack of clarity as regards Article 472 of the Customs Code, and the alleged unfairness of the customs offences proceedings. He relied on Article 6 § 1 of the Convention. 16.  Having regard to all the material in its possession, the Court considers that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto. The Court therefore concludes that applicant’s complaints in that regard must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 17.  The applicants claimed different amounts, as indicated in the relevant column of the Appendix, in respect of pecuniary damage, which represented the confiscated amount and the amount of the fines paid, and in respect of non-pecuniary damage. The applicant in application no. 31516/16 also claimed an amount in respect of the costs and expenses incurred before the Court. 18.  The Government contested those claims, submitting mainly that the confiscation had been a proportionate punishment and that the claims were unsubstantiated. 19.  Having regard to the circumstances of the case, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicants (see Yaremiychuk and Others, cited above, §§ 45-50). 20.  With regard to pecuniary damage, the Court notes that, under Article 472 of the Customs Code, as referred to by the domestic courts, the amount of the fine – equal to the value of the confiscated goods, which in the applicants’ cases was substantial – is fixed by law without any alternative, as the sanction of confiscation. Having regard to its finding above that the mandatory nature of the confiscation of all the excess cash and the imposition of a fine equal to undeclared amounts of money as a sanction was a clearly disproportionate measure the Court considers it appropriate to award the applicants the full amount confiscated from them, as well as a part of the fine (as specified in the relevant column of the Appendix), plus any tax that may be chargeable. 21.  It further considers it reasonable to award the applicant in application no. 31516/16 the amount indicated in the appended table in respect of costs and expenses. As to the applicant in application no. 61463/15, the Court considers that, in the absence of any claim under that head, there is no call to make an award to him in respect of costs and expenses. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaints of both applicants under Article 1 of Protocol No. 1 to the Convention admissible and the remainder of application no. 61463/15 inadmissible; Holds that there has been a violation of Article 1 of Protocol No.1 to the Convention in respect of both applicants; Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants; Holds (a)  that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. Done in English, and notified in writing on 27 November 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Martina Keller Andreas Zünd  Deputy Registrar President       APPENDIX List of applications raising complaints under Article 1 of the Convention (disproportionate sanctions in customs cases) No. Application no. Date lodged Applicant’s name Year of birth Place of residence Nationality Represented by Final decision of the court Sanction imposed Just satisfaction claims The Court’s award[1]   (A) pecuniary damage   (B) costs and expenses 1. 61463/15 03/12/2015 Benediktas Lingys Kaunas Lithuanian   Andriy Anatoliyovych Alekseyenko Volyn Regional Court of Appeal 23 July 2015  Confiscation: 10,998 United States dollars (USD) (EUR 9,818)[2]   Fine: 231,473.06 Ukrainian hryvnias (UAH) (EUR 9,695)[3] Pecuniary damage: USD 10,998 for the confiscated cash plus UAH 231,473.06 for the fine paid (approximately EUR 19,513 in total)   Non-pecuniary damage: EUR 2,000 (A) EUR 19,441     (B) 0 2. 31516/16 26/05/2016 Bogdan Volodymyrovych Shpakovskyy Chornomorsk Russian Anna Leonidivna Yushchenko Sumy Regional Court of Appeal 9 December 2015 Confiscation: USD 29,900 and UAH 8,000 (EUR 26,800 in total)   Fine: UAH 645,380.24 (EUR 26,575) Pecuniary damage: USD 29,900 and UAH 8,000 for the confiscated cash plus UAH 645,380.24 for the fine paid (approximately EUR 53,375 in total)   Non-pecuniary damage: EUR 5,000   Costs and expenses: EUR 900 for his representation before the Court (the applicant submitted copies of the legal assistance contract and invoice from his lawyer for the work done) (A) EUR 53,305     (B) EUR 900     [1] Plus any tax that may be chargeable to the applicants. [2] In this and the following case, the amounts of confiscated funds in currencies other than euros were converted into euros using the conversion rate applicable on the date of the imposition of the sanctions. [3] In this and the following case, the amount of the fine in UAH was converted into euros at the conversion rate applicable on the date of its imposition.