64144/17;73161/17;2625/18;13534/18;15644/18;17260/18;45063/18;9754/19;28702/19;46770/19;62677/19;2868/20;7974/20;9206/21;21783/21

FIFTH SECTION CASE OF RAYCHENKO AND OTHERS v. UKRAINE (Applications nos. 64144/17 and 14 others – see appended list)             JUDGMENT   STRASBOURG 23 January 2025   This judgment is final but it may be subject to editorial revision. In the case of Raychenko and Others v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Diana Sârcu, President,  Kateřina Šimáčková,  Mykola Gnatovskyy, judges, and Viktoriya Maradudina, Acting Deputy Section Registrar, Having deliberated in private on 19 December 2024, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table. 2.  The Ukrainian Government (“the Government”) were given notice of the applications. THE FACTS 3.  The list of applicants and the relevant details of the applications are set out in the appended table. 4.  The present cases concern the applicants’ complaint under Article 1 of Protocol No. 1 to the Convention. They argued that the imposition of fines and confiscation of the entire amount of their lawfully acquired money exceeding the permitted limit, due to their failure to declare it to customs authorities, had constituted a disproportionate measure. THE LAW JOINDER OF THE APPLICATIONS 5.  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 6.  The applicants complained principally of the disproportionate sanctions in customs cases – confiscation of the undeclared cash and imposition of a fine. They relied, expressly or in substance, on Article 1 of Protocol No. 1. 7. The applicable principles concerning confiscation of property were summarised in Gabrić v. Croatia (no. 9702/04, §§ 31-33, 5 February 2009). 8.  In the leading case Yaremiychuk and Others v. Ukraine (nos. 2720/13 and 6 others, §§ 21-36, 9 December 2021) the Court has already found a violation in respect of issues similar to those in the present case. 9.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. In particular, the Court concludes that the interference with the applicants’ property rights imposed a disproportionate burden on them in view of the application of confiscation of all excess cash as the sanction, in addition to a fine. 10.   These complaints are therefore admissible and disclose a breach of Article 1 of Protocol No. 1. 11.   The Court reiterates in this respect that finding of a violation does not imply that the applicants did not have to bear any responsibility for the breach of domestic law they had committed by failing to declare the cash (see Sadocha v. Ukraine, no. 77508/11, § 43, 11 July 2019). APPLICATION OF ARTICLE 41 OF THE CONVENTION 12.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Yaremiychuk and Others, cited above, §§ 45-50), the Court considers it reasonable to award the sums indicated in the appended table. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that these applications disclose a breach of Article 1 of Protocol No. 1 concerning the disproportionate sanctions in customs cases; 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 23 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Viktoriya Maradudina Diana Sârcu  Acting Deputy Registrar President     APPENDIX List of applications raising complaints under Article 1 of Protocol No. 1 to the Convention (disproportionate sanctions in customs cases) No. Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location Specific circumstances of the case Sanction imposed   Fine, if any, in UAH (converted to EUR) Final domestic decision Amount awarded for pecuniary damage per applicant (in euros)[1] Amount awarded for costs and expenses per application (in euros)[2]     64144/17 18/08/2017 Yuriy Sergiyovych RAYCHENKO       The applicant failed to declare to Customs Service the money exceeding the permissible limit of 10,000 euros (EUR)  while leaving Ukrainian territory. As a result, EUR 10,400 were confiscated and a fine of 1700 Ukrainian hryvnas (UAH) (approximately EUR 57) was imposed on the applicant by the Kyiv Court of Appeal’s final decision of 21/03/2017. Confiscation: EUR 10,400   Fine: UAH 1,700 (EUR 57) Kyiv Court of Appeal, 21/03/2017 10,400 -     73161/17 02/10/2017 Igor Anatolyevich BATISHCHEV     Danilenko Tatyana Vladimirovna Kyiv On 25/10/2016 the applicant failed to declare to Customs Service the money exceeding the permissible limit of EUR 10,000 while leaving Ukrainian territory. As a result, 5,100 US dollars (USD) (EUR 4,687) were confiscated and a fine of UAH 1,700 (EUR 60) was imposed on the applicant by the Kyiv Court of Appeal’s final decision of 03/04/2017. Confiscation: USD 5,100 (EUR 4,687)   Fine: UAH 1,700 (EUR 60) Kyiv Court of Appeal, 03/04/2017 4,687     2625/18 04/01/2018 Yevgen Valeriyovych LASHCHENKO       The applicant on 16/09/2017 failed to declare cash: USD 27,000, 800 Russian rouble (RUB) and UAH 55 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 19/12/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.   Confiscation: USD 15,200 (EUR 12,885)   Fine: UAH 1700 (EUR 52) Kyiv Regional Court of Appeal, 19/12/2017 12,885 -     13534/18 06/03/2018 Yansong LIU   Brodovskyy Yevgeniy Oleksandrovych Kyiv The applicant on 10/09/2017 has failed to declare cash: USD 66,300 (EUR 55,075) and RUB 24,150 (EUR 349) at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 08/12/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.   Confiscation: USD 54,800 (EUR 46,495)   Fine: UAH 1,700 (EUR 54) Kyiv Regional Court of Appeal, 08/12/2017 46,495     15644/18 20/03/2018 Oshri Khagay KOEN       The applicant on 22/06/2017 failed to declare cash: USD 1,700, 7,090 Israeli new shekel (ILS), and EUR 11,840 out of a total of EUR 21,840 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 21/09/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit. Confiscation: USD 1,700 (EUR 1,420) and ILS 7,090 (EUR 1,687) and EUR 11,840   Fine: UAH 1,700 (EUR 54) Kyiv Regional Court of Appeal, 21/09/2017 14,947 -     17260/18 21/03/2018 Christiaan Leonard BOUWER   Gavrylyuk Yuliya Igorivna Odesa The applicant on 28/05/2017 failed to declare cash: UAH 2,629, EUR 90,240 out of a total of EUR 100,240 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 22/09/2017 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit.   Confiscation: UAH 2,629 (EUR 83) and EUR 90,240   Fine: UAH 1,700 (EUR 54) Kyiv Regional Court of Appeal, 22/09/2017 90,323     45063/18 11/09/2018 Yevgen Volodymyrovych YURCHENKO   Mykhaylenko Vira Volodymyrivna Kyiv On 01/02/2018 the applicant signed a contract of irrevocable financial aid donating EUR 100,000 to the Charitable foundation Dukhovna Osvita. On 06/02/2018 the applicant arrived at the Boryspil airport, carrying with him EUR 100,000 and USD 225. The applicant alleges that he lost his way in a crowd and entered the “green corridor” without declaring the money. The customs officers seized EUR 90,000, USD 225 and imposed a fine of UAH 1,700. On 13/06/2018 the Kyiv Regional Court of Appeal by its final decision found the applicant guilty of having committed an administrative offence and fined him to UAH 1,700, additionally confiscating the seized money. The court concluded that the confiscation would not create individual excessive burden considering the applicant’s earnings in 2017 and the intention of donating the money. Сonfiscation: EUR 90,000 and USD 225 (EUR 187)   Fine: UAH 1,700 (EUR 54)  Kyiv Regional Court of Appeal, 13/06/2018 90,191     9754/19 11/01/2019 Oleg KORZHOV   Chornyy Oleksiy Vitaliyovych Odesa The applicant on 15/03/2018 failed to declare cash USD 68,500 at the Odesa airport while choosing the “green corridor” for border crossing. On 13/07/2018 the Odesa Regional Court of Appeal upheld the 1st instance court judgment finding the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit. Confiscation: EUR 58,500   Fine: UAH 1,700 (EUR 54) Court of Appeal of Odesa Region, 13/07/2018 58,500     28702/19 18/05/2019 Tarik Zeyyad KUTISHAT   Kormushyna Olga Ivanivna Kyiv The applicant on 20/08/2018 failed to declare cash USD 16,900 at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 19/11/2018 the Kyiv Regional Court of Appeal quashed the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit. Confiscation: USD 5,510 (EUR 4,825)   Fine: UAH 1,700 (EUR 51) Court of Appeal of Kyiv Region, 19/11/2018 4,825   46770/19 25/08/2019 Alexandre CONESA PUEYO   Kostenko Iryna Anatoliyivna Kyiv The applicant on 05/12/2018 failed to declare cash USD 30,300 (EUR 26 649) at the Boryspil airport in Kyiv while choosing the “green corridor” for border crossing. On 28/03/2019 the Kyiv Regional Court of Appeal upheld in part the 1st instance court judgment and found the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit. Confiscation: USD 18,900 (EUR 16,784)   Fine: UAH 1,700 (EUR 63) Court of Appeal of Kyiv Region, 28/03/2019 16,784   62677/19 23/11/2019 Pavlo Igorovych SHVETS       On 21/12/2018 the applicant had failed to declare cash of USD 2,300 (EUR 2,060) out of a total of USD 13,700 (EUR 12,275) at the Zaporizhzhia airport while choosing the “green corridor” for border crossing. On 23/05/2019 the Zaporizhzhia Court of Appeal found the applicant guilty of a breach of the customs rules (Article 471 of the Customs Code) and ordered confiscation of the undeclared amount of cash combined with a fine. Confiscation: USD 2,300 (EUR 2,060)   Fine: UAH 1,700 (EUR 57) Zaporizhzhia Court of Appeal, 23/05/2019 2,060     2868/20 28/12/2019 Oleg Sergiyovych SHARAPOV   Dorogin Kostyantyn Yuriyovych Kyiv On 31/01/2019 the applicant had failed to declare cash of USD 4,600 (EUR 4,083) out of a total of USD 16,000 (EUR 14,203) at the Kyiv airport while choosing the “green corridor” for border crossing. On 12/07/2019 the Kyiv Court of Appeal found the applicant guilty of a breach of the customs rules (Article 471 of the Customs Code) and ordered confiscation of the undeclared amount of cash combined with a fine. Confiscation: USD 4,600 (EUR 4,083)   Fine: UAH 1,700 (EUR 58) Kyiv Court of Appeal, 12/07/2019 4,083   7974/20 31/01/2020 Andriy Leonidovych MYASNIKOV   Tyran Oleksandr Viktorovych Boryspil On 20/09/2019 the applicant failed to declare cash of USD 7,200 (EUR 6,505) out of a total of USD 18,266 (EUR 16,504) at the Boryspil airport while choosing the “green corridor” for border crossing. On 19/11/2019 the Kyiv Court of Appeal found the applicant guilty of a breach of the customs rules (Article 471 of the Customs Code) and ordered confiscation of the undeclared amount of cash combined with a fine. Confiscation: USD 7,200 (EUR 6,505)   Fine: UAH 1,700 (EUR 63) Kyiv Court of Appeal, 19/11/2019 6,505   9206/21 08/02/2021 Oleksandr Grygorovych SHEVCHUK   Boychenko Yegor Leonidovych Strasbourg The applicant on 21/12/2019 failed to declare cash: USD 20,800 and EUR 3,000 at the Zhulyany airport in Kyiv while choosing the “green corridor” for border crossing. On 21/09/2020 the Kyiv Court of Appeal partially upheld the 1st instance court judgment finding the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit. Confiscation: USD 13,030 (EUR 11,002)   Fine: UAH 1,700 (EUR 52) Kyiv Court of Appeal, 21/09/2020 11,002   21783/21 15/04/2021 Vitaliy Mykhaylovych DIDUKH   Kristenko Andriy Anatoliyovych Calgary The applicant on 24/06/2020 failed to declare cash: USD 81,900 at the customs post “Krakovets” on the border with Poland while choosing the “green corridor” for border crossing. On 02/12/2020 the Lviv Court of Appeal upheld the 1st instance court judgment finding the applicant guilty of a breach of the customs rules, Article 471 of the Customs Code. An administrative fine was imposed on him, along with the confiscation of the amount that exceeded the permitted limit. Confiscation: USD 70,600 (EUR 58,847)   Fine: UAH 1,700 (EUR 51) Lviv Court of Appeal, 02/12/2020 58,847     [1] Plus any tax that may be chargeable to the applicants. [2] Plus any tax that may be chargeable to the applicants.