The ECHR found a violation of the requirements of article 2 of Protocol No. 7 to the Convention for the protection of human rights and fundamental freedoms.

Заголовок: The ECHR found a violation of the requirements of article 2 of Protocol No. 7 to the Convention for the prot Сведения: 2020-12-25 07:44:25

ECHR decision of 30 June 2020 in the case "Saquetti Iglesias v. Spain" (aplication No. 50514/13).

In 2013, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Spain.

The case successfully considered an aplication about the applicant's lack of opportunity to appeal against the imposition of a customs fine disproportionate to the offense committed by him. The case involved a violation of the requirements of article 2 of Protocol No. 7 to the Convention for the protection of human rights and fundamental freedoms.





During the customs inspection at the exit from Spain in March 2011, the applicant was found to have an amount of 154,800 euros that was subject to Declaration (more than 10,000 euros), for which he was fined 153,800 euros, which was almost equal to the amount found in the applicant's possession. The applicant explained that this amount of money was formed from the amounts that he brought from Argentina and regularly declared, which over 10 years amounted to 300,000 euros.

In October 2011, the applicant applied to the court in administrative proceedings. In 2013, the Supreme court of Madrid rejected his claim, stating that his decision could not be appealed in accordance with the changes that were made to the law and related to the conditions of appeal to the court of cassation related to the amount of the dispute (with the exception of special procedures for the protection of fundamental rights): before that, the amount of the dispute had to be at least 150,000 euros, and after the changes-600,000 euros. In accordance with the transitional provisions, the cases before the courts of cassation were subject to the rules of procedure previously in force until the relevant court issued a decision.

Complaining, among other things, of the immediate application of the law in his case, the applicant filed an amparo complaint with the constitutional court, which was rejected on the grounds that there was no sufficient justification for the constitutional significance of the case.




Regarding compliance with article 2 of Protocol No. 7 to the Convention. (1) Applicability: was the sentence imposed on the applicant "criminal"? In the light of the" Engel criteria "(judgment of the European Court of justice in Engel and others V. Netherlands of 8 June 1976, complaints N 5100/71 - 5102/71, 5354/72 and 5370/72), the European Court answered this question in the affirmative.

Qualification in the legislation of the Respondent state (a criterion that is not decisive). Violation of the Declaration obligation provided for by the law on prevention of money laundering and financing of terrorism was an administrative offense.

The nature of the offense. The relevant provision of the law was of a General nature and applied to any person, natural or legal, who crossed the border and carried out the described activities in connection with the turnover of capital. The purpose of the fine was not to protect the state from the loss of capital, but to punish and intimidate. This consideration was sufficient in itself. The present case differs from some previous cases, in particular the decision Of the European Court of justice in the case of Inocencio V. Portugal. Portugal) of 11 January 2001, complaint No. 43862/98, which concerned the imposition of a penalty of only 2,500 euros for carrying out work without a permit, and from the Judgment of the European Court of justice in the case of Butler V. United Kingdom of 26 June 2002, complaint No. 41661/98, concerning the imposition of a higher penalty, but in which the authorities checked the proportionality of the punishment and in which there were reasonable indications that the applicant, previously convicted, was engaged in smuggling.

The severity of the punishment that could have been imposed. In Spanish law, the applicant's offence was classified as "serious" and was punishable by a fine of between 600 and 1,200 euros.

  1. Exceptions to the guaranteed right. The court did not agree with any of the arguments of the Spanish authorities concerning the exceptions provided for in article 2, paragraph 2, of Protocol No. 7 to the Convention. (a) an Exception related to the" insignificance " of the offence. (i) principles of interpretation. According to the explanatory report to Protocol No. 7 to the Convention, in order to decide whether an offence was "minor", an important criterion is whether it was punishable by deprivation of liberty or not. In the present case, the penalty imposed on the applicant, in the event of non-payment of the fine, could not be replaced by imprisonment. However, this element is not decisive. Other criteria must be taken into account.

It is obvious that there is a great variety in the legislation of the States parties to the Convention with regard to customs sanctions for non - Declaration of monetary amounts. Compliance with the principle of subsidiarity, as well as the limits of discretion granted to States in this area, lead the court to conclude that the relevance and significance of each element should be assessed depending on the circumstances of each case.

It is necessary that the measure in question reaches a certain level of gravity, but the authorities of the Respondent state should check its proportionality, as well as the existence of particularly serious consequences, depending on the applicant's personal situation. The possibility of imposing a custodial sentence is an important factor that should be taken into account when assessing the insignificance of the nature of the offence, although this factor is not decisive.

This interpretation is consistent with the General rules for the interpretation of international treaties provided for in the Vienna Convention on the law of treaties.

(ii) the Application of the above principles in the present case. The severity of the punishment. The applicant was fined EUR 153,800 and could have been twice as much. This amount corresponded to the amount of all the savings that the applicant, who had no criminal record, was able to make during his periodic stays in Spain.

Because it was not proved that the seized amounts were received as a result of activities related to money laundering, the severity of the punishment was to be commensurate with the gravity only the specified offences in the present case, it was the absence of a Declaration of transported sums, and not the severity of possible violations, which has not been set at this stage and which could consist in the Commission of such offence as money laundering or tax fraud.

With regard to the applicant's conduct, it should be noted that he fulfilled the obligation to declare funds every time he crossed the state border of Spain.

Procedural guarantees. The decision of the superior court of Madrid did not contain any analysis of the proportionality of the contested measure, as, however, required by law. The decision did not take into account either the applicant's personal situation or the documents and evidence presented by him. The present case concerned a requirement that the court had already had the opportunity to examine when considering customs sanctions from the point of view of article 1 of Protocol No. 1 to the Convention. Otherwise, according to the current legislation, the export of capital, as a rule, was not subject to Declaration and did not require prior authorization to conduct appropriate checks in order to prevent money laundering or terrorist financing.

Thus, the exception concerning "minor" offences was not applicable in the present case.

(b) an Exception related to the fact that the person has already been tried in the first instance by the Supreme court. In administrative matters, the Supreme court is part of the hierarchy of General courts. You can apply to it after the case is considered in a higher court, when the amount of the dispute reaches the legal limit (600,000 euros). Thus, the Supreme court of Madrid could not be considered as the Supreme court.

  1. Respect for the guaranteed right: has the applicant's right to appeal against criminal convictions in the second instance been respected? The court that should have been recognized first. According to the Explanatory report to Protocol No. 7 to the Convention, authorities "which are not courts within the meaning of article 6 of the Convention" cannot be recognized as "judicial instances". In the present case, it was the body authorized to impose the fine, namely the General Directorate of Treasury and financial policy, which was directly subordinate to the Ministry of economy. Thus, the first instance in the applicant's case was the Supreme court.

The constitutional court could not perform the role of a court of second instance. In accordance with the Explanatory report to Protocol No. 7 to the Convention, courts of appeal or cassation may be considered as meeting the requirements of a "second instance"court. On the contrary, it says nothing about the constitutional courts. In the light of the powers conferred on the Spanish constitutional court in dealing with the amparo complaints described below, the court concluded that the court was not a "second instance"court.

According to Spanish law, the power to verify the legality is granted to courts that belong to the judicial branch (among them the courts of appeal or cassation). With regard to amparo's complaints against the judgment, the Organic law on the Spanish constitutional court limits the latter's functions to assessing whether the applicant's rights have been violated and protecting or restoring those rights and freedoms. This law specifies that the constitutional court must refrain from any other opinions concerning the actions of the judiciary. The constitutional court itself has stressed in its case-law that the amparo complaint cannot be equated with a cassation appeal in the interests of the law.

Despite the fact that the application of the restrictions imposed by the law to the applicant was in accordance with the transitional provisions of this law, it violated the very essence of the right guaranteed by article 2 of Protocol No. 7 to the Convention, and was not covered by the limits of discretion of the Respondent state authorities provided for by it in the field of human rights regulation.




The case involved a violation of the requirements of article 2 of Protocol No. 7 to the Convention (adopted unanimously).




In the application of article 41 of the Convention. The court awarded the applicant EUR 9,600 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.



Добавить комментарий


© 2011-2018 Юридическая помощь в составлении жалоб в Европейский суд по правам человека. Юрист (представитель) ЕСПЧ.