Review of national court decisions in customs offence cases based on ECtHR judgments: Secretary of the Grand Chamber of the Supreme Court outlined the relevant SC GC case law

Under the Law of Ukraine “On the Execution of Judgments and Application of the Case Law of the European Court of Human Rights”, Ukraine is obliged to enforce final judgments of the European Court of Human Rights (ECtHR) in any case in which it is a party, and national courts apply the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention) and the case law of the Court as a source of law when hearing cases.

Accordingly, the Grand Chamber of the Supreme Court reviews judgments in cases of administrative offences related to violations of customs regulations if an international judicial body whose jurisdiction is recognized by Ukraine (ECtHR) establishes that Ukraine violated its international obligations when the case was adjudicated by a national court.

This was noted by Vitalii Urkevych, Secretary of the Grand Chamber of the Supreme Court, during a special interview held as part of the 4th Forum on Customs Law and International Trade.

As the speaker explained, the legislator provides for two types of measures to ensure the enforcement of ECtHR judgments: general measures, which mainly concern amendments to legislation, and individual measures, which include payment of just satisfaction to the applicant and the adoption of additional individual measures, such as: a) restoration, to the extent possible, of the previous legal situation that existed before the violation of the Convention; b) other measures specified in the ECtHR judgment.

Regarding applications for review of a court decision, he noted that an application for review of a decision in an administrative offence case can only be filed by a person in whose favour a decision has been made by an international judicial institution whose jurisdiction is recognised by Ukraine. An application for review may be filed no later than one month from the date when the person in whose favour the decision of an international judicial institution whose jurisdiction is recognised by Ukraine became aware of the final status of the decision. This time limit may be renewed for valid reasons.

Turning to the case law of the Grand Chamber of the Supreme Court in reviewing national court decisions, Vitalii Urkevych described three ECtHR judgments and the corresponding resolutions of the Grand Chamber of the Supreme Court concerning the review of national judgments in customs offence cases.

In the first case – “Krayeva v. Ukraine” (ECtHR judgment of 13 January 2022), the issue concerned a violation of Part 1 of Article 483 of the Customs Code of Ukraine (hereinafter – CCU). The case involved an allegation that the declarant had attempted to conceal goods from customs control and had provided incorrect information to customs authorities for the purpose of calculating the customs value of imported goods. A fine of EUR 48,661.56 was imposed on the applicant as a penalty for the administrative offence for which she was found guilty, although she consistently maintained that she had inadvertently provided incorrect information to the customs authorities because she had failed to notice that the invoice sent by the seller was incorrect.

In this case, the ECtHR found that Ukraine had violated Article 1 of Protocol No. 1 to the Convention, as the sanction imposed on the applicant — in particular, the amount of the fine — constituted a disproportionate interference with her property rights.

In her application to the SC Grand Chamber, the applicant requested the quashing of the appellate court’s decision, arguing that the appellate court had failed to take into account and examine evidence casting doubt on the existence of the elements of an offence in her actions, and had not considered her financial situation when imposing the penalty.

Given the nature of the violations established by the ECtHR, their legal character, and the stage of the proceedings at which they occurred, the Grand Chamber of the Supreme Court remitted the case for a new appellate review (SC Grand Chamber resolution of 27 July 2022 in case No. 334/5231/13-п).

In the following case, “Ganushchak v. Ukraine” (ECtHR judgment of 29 August 2024), the applicant complained under Article 1 of Protocol No. 1 to the Convention about the unlawful and disproportionate punishment imposed on him — namely, confiscation and a fine — for a customs offence, specifically the importation of a car into Ukraine through a closed checkpoint in Crimea.

According to the ECtHR, the imposition of a fine equivalent to the value of the confiscated vehicle constituted an interference with the applicant’s right to the peaceful enjoyment of his possessions. Moreover, the Court noted that domestic courts lacked consistent practice regarding whether private vehicles could be considered “goods” within the meaning of Article 482 of the Customs Code of Ukraine. The ECtHR therefore found that Ukraine had violated Article 1 of Protocol No. 1 to the Convention and awarded the applicant compensation for pecuniary damage.

When reviewing the national court decisions, the Grand Chamber of the Supreme Court, in its judgment of 30 April 2025 in case No. 668/10895/15-p, emphasized the following. In the context of applying Article 41 of the Convention to the circumstances of this case, the ECtHR stated that the finding of a violation of Article 1 of Protocol No. 1 in itself constituted sufficient just satisfaction for non-pecuniary damage. The applicant’s property situation, which had been interfered with, was restored through full payment of the awarded compensation. The ECtHR did not consider the appellate court’s ruling on the applicant’s guilt to be such as to call into question the overall outcome of the administrative offenсe case, since, according to the judgment, the applicant had not complained of a violation of his right to a fair trial, and agreed that the interference under Article 1 of Protocol No. 1 consisted solely in the imposition of a fine equivalent to the value of the confiscated vehicle.

Thus, the Grand Chamber of the Supreme Court noted that such an additional individual measure as a re-examination of the administrative offenсe case concerning the applicant, including the reopening of proceedings, cannot be applied, and dismissed the application for a review of the court decision.

In its judgment of 12 December 2024 in the case of Sapitash and Others v. Ukraine concerning the transport of cash across the customs border, the ECtHR found a violation of Article 1 of Protocol No. 1 to the Convention, consisting in the disproportionate seizure of undeclared cash in an administrative case on customs violations in addition to the imposed fine. At the same time, the ECtHR found no other violations of the Convention.

The applicant requested a review of the court decisions in the administrative offence case and sought their annulment in connection with the ECtHR’s finding of a violation of Article 1 of Protocol No. 1 to the Convention, and requested that the case be sent back for a new hearing in the first-instance court.

In its resolution of 27 August 2025 in case No. 163/1065/15-p, the Grand Chamber of the Supreme Court took into account that the applicant’s only unlawful (though not criminally punishable) act was the failure to declare the exact amount of currency being transported in the prescribed form while passing through the simplified “green corridor” customs control procedure, which was contrary to the requirements of the Customs Code of Ukraine and the Resolution of the NBU Board of 27 May 2008 No. 148 “On the Movement of Cash and Bank Metals Across the Customs Border of Ukraine”. The courts did not establish circumstances indicating that the applicant could have caused significant harm to the state.

Under the Law of Ukraine of 16 February 2022 No. 2058-IX, Article 471 of the Customs Code of Ukraine, “Failure to Declare Goods Transported Across the Customs Border of Ukraine by Citizens”, has been revised to provide for administrative liability in the form of a fine for undeclared goods, removing the disproportionate penalty associated with mandatory confiscation. The new version of Article 471 of the Customs Code preserves the possibility of confiscation (but only for certain categories of goods — restricted or prohibited — and only as an alternative to a fine, not as a mandatory measure).

Taking this into account, the SC Grand Chamber partially satisfied the application and amended the rulings of the first-instance and appellate courts, removing the administrative penalty in the form of confiscation of the seized foreign currency in favour of the state.

Vitalii Urkevych summarized that, when reviewing national court decisions based on ECtHR rulings, the Grand Chamber of the Supreme Court always follows an individual approach and takes into account how justice can be restored for a specific person.

Vitalii Urkevych's presentation is available at https://court.gov.ua/storage/portal/supreme/prezentacii_2025/Pereglad_VP_VS_sydovuh_rishen.pdf.  

The forum was organised by the Ukrainian Bar Association.

Photo courtesy of the organisers.