VESTRA, PP A OSTATNÍ proti Ukrajině

FIFTH SECTION

DECISION

Application no. 60680/16
VESTRA, PP against Ukraine
and 6 other applications
(see list appended)

The European Court of Human Rights (Fifth Section), sitting on 2 September 2025 as a Chamber composed of:

Kateřina Šimáčková, President,
María Elósegui,
Georgios A. Serghides,
Gilberto Felici,
Andreas Zünd,
Diana Sârcu,
Mykola Gnatovskyy, judges,
and Victor Soloveytchik, Section Registrar,

Having regard to:

the above applications lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Vestra, PP (“the first applicant company”) and Varra Treyd, TOV (“the second applicant company”) on the various dates indicated in the appended table,

the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 1 of Protocol No. 1 to the Convention and to declare the complaints under Article 6 of the Convention inadmissible,

the parties’ observations,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicant companies, both legal entities registered under Ukrainian law, is set out in the appendix. They were represented by Mr G. Tokarev, a lawyer practising in Kharkiv.

2. The Government were represented by their Agent, Ms M. Sokorenko.

The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Import operations and subsequent judicial proceedings

4. Between December 2009 and August 2010 the second applicant company, and between February and August 2012 the first applicant company, imported multiple categories of consumer goods into Ukraine. Each consignment of goods was accompanied by a customs declaration and supporting documentation, including suppliers’ invoices. In total, during the periods in question, the first applicant company submitted 484 declarations to the customs authorities and the second applicant company 42 declarations.

5. In each of the above-mentioned customs declarations the applicant companies reported two different customs values for the imported goods. The first value appearing in the declarations under the heading “Currency and invoice total” (“Валюта та загальна сума за рахунком”) corresponded to the prices of the goods indicated in the suppliers’ invoices. The second value, appearing under the headings “Value details” (“Відомості про вартість”) and “Adjustments” (“Коригування”), was significantly higher than the invoice prices and, according to the customs authorities, corresponded to the prices for similar goods imported by other importers. The applicant companies asserted that they had indicated the second value in each customs declaration following consultations with the customs officers, who would otherwise have refused to proceed with the clearance of the goods on the grounds that the initially indicated invoice-based customs values had been intentionally understated. The second (higher) customs values were subsequently used to calculate the amounts of customs duties and VAT, which the applicant companies paid in full. The first applicant company stated that in this way, it had overpaid in total more than 51,000,000 Ukrainian hryvnias (UAH – equivalent to more than 5,100,000 euros (EUR) at the time) in customs duties and VAT, and the second applicant company stated that it had overpaid by more than UAH 5,000,000 (equivalent to more than EUR 500,000 at the time; see the exact amounts of the alleged overpayments in the appendix).

6. Following the release of the goods, the applicant companies sought the reimbursement of the allegedly overpaid amounts. In written requests submitted to the customs authorities by the first applicant company between June and October 2012 and by the second applicant company in May and July 2012, they argued that the customs charges should have been levied on the basis of the invoice-based customs values, and not on the higher customs values which they had indicated in the declarations in accordance with the customs authorities’ instructions.

7. On various dates the customs authorities rejected the applicant companies’ requests for reimbursement. They noted that the customs clearance of the imported goods had been carried out on the basis of the customs values indicated by the applicant companies themselves, which the customs authorities had merely accepted.

8. On various dates in 2012 the applicant companies instituted administrative proceedings against the customs authorities and the State Treasury, seeking a refund of the allegedly overpaid customs charges.

9. In their claims the applicant companies argued that it had been the duty of the customs authorities to verify the accuracy of the declarations submitted. In their view, the authorities should have noted that the higher values on the declarations did not correspond to the suppliers’ invoices, and therefore the declarations should have been processed on the basis of the invoice-based customs values (the “first” or “transaction value” method of determining the customs value of the imported goods; see paragraphs 18 – 19 below). Instead, the customs authorities had determined the customs value on the basis of the adjusted customs value, which represented the method used only when no other methods were available (the “sixth” or “fall-back” method; see paragraphs 18 – 19 below). Furthermore, relying on the provisions of the International Convention on the Simplification and Harmonization of Customs Procedures (see paragraph 27 below) and the ruling of the Supreme Court of Ukraine (“the Supreme Court”) of 1 December 2009 (see paragraph 23 below), the applicant companies asserted that they had the right to the reimbursement of overpaid customs charges, regardless of whether those overpayments had resulted from their own actions or the actions of the customs authorities.

10. The customs authorities objected, arguing in response that there had been no grounds for the reimbursement of the amounts in question. In particular, the adjusted values in the customs declarations corresponded to the prices for analogous and similar goods imported by other declarants and there had been no grounds for the customs authorities not to accept them, especially since those values had been indicated by the applicant companies themselves.

11. The courts of first instance and appeal granted the applicant companies’ claims. The courts found that the applicant companies had overpaid the customs charges on the amounts in question, as they had been calculated on the basis of customs values that did not match the suppliers’ invoices. In those circumstances, in the courts’ view, the customs authorities had been required to proceed with the clearance of the goods on the basis of the invoice-based customs values (“the first method”) and had had no grounds to use the reserve (“sixth”) method. To justify the applicant companies’ right to a refund, the courts referred to, inter alia, the ruling of the Supreme Court of 1 December 2009 (see paragraph 23 below).

12. On various dates in 2014 the Higher Administrative Court (“the HAC”) upheld the rulings of the lower courts in all seven cases.

2. Reconsideration of the cases by the Supreme Court and the HAC

13. In June 2016 the customs authorities and the Office of the Prosecutor General applied to the Supreme Court for a review of the HAC’s rulings in the applicant companies’ cases on the basis of the alleged divergence in case‑law. In particular, they argued that in a number of similar cases where claimants had sought the reimbursement of allegedly overpaid customs charges, the HAC had ruled that such reimbursement would not be possible unless the customs value of the imported goods had been determined by the customs authorities (for an overview of that case-law, see paragraph 24 below).

14. On various dates in 2016 (set out in the appendix) the Supreme Court established the divergence in existing case-law on the matter, quashing the HAC’s rulings in all seven cases and remitting all of them for fresh consideration. It noted that under Ukrainian law (Article 262 of the Customs Code of 2002 and Articles 51, 52, 54 of the Customs Code of 2012), it was the declarant who should have been responsible for declaring the customs value of imported goods. It also held that the declarants were entitled to challenge the customs authorities’ decisions concerning the customs value of imported goods and that therefore, where the customs charges had been calculated on the basis of the goods’ value as declared by the declarants without the customs authorities’ involvement, there should have been no grounds to hold the customs authorities accountable, or to regard such charges as overpaid (Article 264 of the Customs Code of 2002 and Article 301 of the Customs Code of 2012).

15. After a fresh examination, on various dates in 2016 (set out in the appendix) the HAC found against the applicant companies in each of those cases. In dismissing their claims, the HAC followed the reasoning of the Supreme Court and noted that the applicant companies had themselves chosen to adjust the initial customs value and opt for the reserve (“sixth”) method to determine the customs value of the imported goods. It further held that the customs authorities had accepted that choice in accordance with their powers and that, given the absence of evidence showing the customs authorities’ involvement in the determination of the customs value, the alleged amounts could not be treated as overpayments and thus subject to reimbursement.

3. Application for further review by the Supreme Court

16. In all but one case (application no. 60680/16), the applicant companies applied to the Supreme Court seeking a review of the HAC’s 2016 rulings, on the grounds of an alleged divergence in case-law. They relied on, in particular, the HAC’s judgments in three apparently similar cases delivered after the dismissal of their claims (ruling of the HAC of 21 March 2017, proceedings nos. 81041/13-a and K/800/36984/14; ruling of the HAC of 22 February 2017, proceedings no. 826/4870/15; and ruling of the HAC of 17 May 2017, proceedings no. 826/14678/14) (for an overview of that case‑law, see paragraph 26 below).

17. On various dates in 2017 (set out in the appendix) the Supreme Court found that there had been no divergence in the case-law and rejected the applicant companies’ applications.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. relevant domestic law
   1. The Customs Codes of Ukraine

18. The relevant provisions of the Customs Code of Ukraine (no. 92-IV of 11 July 2002) as in force at the material time (“the Customs Code of 2002”) read as follows:

Article 259. Determination of the customs value of goods crossing the customs border of Ukraine

“The customs value of goods ... shall be determined by the declarant in accordance with the provisions of this Code.”

Article 262. Declaration of the customs value of goods

“The customs value of goods and the method of its determination shall be declared to the customs authorities by the declarant ... by submitting a customs declaration.”

Article 264. Rights and obligations of the declarant in declaring the customs value of goods

“... In the event that, after the declarant has paid taxes and duties in accordance with the customs value of the goods as determined by the customs authorities, a decision is made to accept the customs value declared by the declarant, the amount of overpaid taxes and duties shall be refunded to the declarant within one month from the date of that decision, in accordance with the procedure established by law ...

... The declarant shall have the right to appeal against a decision of the customs authorities regarding the determination of the customs value of ... goods to the customs authorities of a higher level and/or to a court ...”

Article 265. Rights and obligations of the customs authorities in verifying the accuracy of the determination of customs value

“The customs authorities shall verify the accuracy of the determination of the customs value of goods in accordance with the provisions of this Code.”

Article 266. Methods for determining the customs value of goods imported into Ukraine

“The customs value of goods imported into Ukraine shall be determined by the following methods:

(1) on the basis of the transaction price of the imported goods (transaction value);

(2) on the basis of the transaction price of identical goods;

(3) on the basis of the transaction price of similar (analogous) goods;

(4) on the basis of the deductive value;

(5) on the basis of the computed value;

(6) the fall-back method.

The primary method for determining the customs value of goods shall be on the basis of the transaction price of the imported goods.

If the customs value cannot be determined by the first method ... the customs authorities and the declarant shall engage in a consultation procedure with a view to making a reasoned choice of the basis for determining the customs value ...

...

Each subsequent method shall be applied only if the customs value of the goods cannot be determined by applying the immediately preceding method.

...

Where it is impossible to apply any of the methods specified above, the customs value shall be determined by the fall-back method ...”

Article 273. Fall-back method

“If the customs value of the goods cannot be determined by the sequential application of the methods set out in Articles 267-272 of this Code, the customs value of the goods shall be determined by means that are not contrary to the laws of Ukraine and are consistent with the relevant principles and provisions of the General Agreement on Tariffs and Trade (GATT).

...”

19. On 13 March 2012 Parliament enacted a new Customs Code, which entered into force on 1 June 2012 (“the Customs Code of 2012”). Its relevant provisions as in force at the material time read as follows:

Article 51. Determination of the customs value of goods crossing the customs border of Ukraine

“1. The customs value of goods ... shall be determined by the declarant in accordance with the provisions of this Code.”

Article 52. Declaration of the customs value of goods

“1. The customs value of goods shall be declared by the declarant ... during the customs clearance process ...

2. The declarant ... shall:

(1) declare the customs value he or she has determined independently ...;

(2) submit accurate information to the customs authorities regarding the determination of the customs value ...;

...

3. The declarant ... shall have the right to:

...

(4) appeal against ... a decision of the customs authorities to adjust the customs value of the goods ..., as well as a failure by the customs authorities to decide on ... the customs value of the goods ... within the time limits set out ... for the completion of customs clearance.”

Article 54. Verification of the accuracy of the determination of customs value

“3. On the basis of the results of the verification of the accuracy of the determination of the customs value of goods, the customs authorities shall either accept the customs value declared by the declarant ... or issue a written decision on its adjustment ...”

Article 57. Methods for determining the customs value of goods imported into the customs territory of Ukraine under the customs importation regime

“1. The customs value of goods imported into Ukraine under the customs importation regime shall be determined by the following methods:

(1) Principal method – by the contract (transaction) price of the imported goods (transaction value);

(2) Secondary methods:

(a) by the contract price of identical goods;

(b) by the contract price of similar (analogous) goods;

(c) on the basis of the deductive value;

(d) on the basis of the computed value;

(e) the fall-back method.

2. The principal method for determining the customs value of goods imported into the customs territory of Ukraine under the customs importation regime shall be the first method, namely, by the contract price (transaction value).

3. Each subsequent method shall be applied only if the customs value of the goods cannot be determined by applying the previous method ...

4. The application of secondary methods shall be preceded by a consultation procedure between the customs authorities and the declarant for the purpose of establishing the basis of the value ...

...

8. Where it is impossible to apply any of the above-mentioned methods, the customs value shall be determined by the fall-back method ...”

Article 64. Fall-back method

“1. Where it is not possible to determine the customs value of goods by the sequential application of the methods set out in Articles 58-63 of this Code, the customs value of the goods ... shall be determined by means that are not contrary to the laws of Ukraine and are consistent with the relevant principles and provisions of the General Agreement on Tariffs and Trade (GATT).”

Article 264. Acceptance of the customs declaration

“...

8. Upon acceptance by the customs authorities, a customs declaration shall constitute a legally binding document ... and the declarant ... shall be liable for any false or misleading information contained therein.

...

12. In the event that a customs declaration is refused, a refusal form shall be completed by the relevant customs officer ... One copy of the refusal form shall be promptly sent to the declarant ...”

Article 301. Repayment of erroneously and/or excessively paid customs duties

“1. The repayment of erroneously or excessively paid customs duties shall be carried out in accordance with the Budget Code of Ukraine and the Tax Code of Ukraine.

2. In the event of erroneous and/or excessive payment of customs duties, the customs authorities shall be required to inform the taxpayer of the amounts of those overpaid duties no later than one month from the date on which the fact of that payment is established.

3. The amount of customs duties erroneously and/or excessively paid to the State budget shall be repaid from the State budget in accordance with the procedure determined by the central authority responsible for formulating and implementing the State’s financial policy.

4. Where it is established that the excessive payment is a result of an error on the part of the customs authorities, repayment of excessively paid customs duties shall be made as a matter of priority.”

2. Code of Administrative Justice

20. The relevant provisions of the Code of Administrative Justice (no. 2747-IV of 6 July 2005) (“the CAJ”), following amendments introduced by the Law No. 192-VIII of 12 February 2015 (entered into force on 28 March 2015), as in force at the material time, read as follows:

Article 235. Review of a court decision by the Supreme Court of Ukraine

“1. The Supreme Court of Ukraine shall review a court decision in an administrative case exclusively on the grounds and in accordance with the procedure established by this Code.”

Article 236. Right to apply for review of a court decision

“1. The parties and other persons participating in the proceedings have the right to lodge an application for review of court decisions:

(1) in administrative cases after such decisions have been examined by a cassation court.”

Article 237. Grounds for submission of an application for review of a court decision

“1. An application for review of a court decision in an administrative case may only be lodged on the following grounds:

(1) divergent application by a cassation court (or courts) of the same provisions of substantive law, which has led to the delivery of different court decisions (in their content) in similar legal matters.

(2) divergent application by a cassation court of the same provisions of procedural law when a contested decision impedes further proceedings in the case or was adopted in breach of the rules of ... jurisdiction of courts in administrative cases.”

Article 238. Time-limits for lodging an application for review of a court decision

“1. An application for review of a court decision shall be lodged within three months of the date on which the contested decision was adopted, or of the date on which a decision to which reference is made in support of the grounds prescribed by subparagraphs 1 and 2 of the first paragraph of Article 237 of this Code, if this decision was adopted later, but in any event no later than one year from the date of the contested decision.

Article 2391. Procedure for lodging an application for review

“1. An application for review shall be lodged directly with the Supreme Court of Ukraine.”

Article 2392. Verification of compliance of the application with the requirement of this Code

“...

2. The judge-rapporteur verifies the compliance of the application with the requirements of this Code within three days.

...

4. The application shall be returned to the applicant if:

...

(4) there is a resolution of the Supreme Court of Ukraine refusing to admit the case for examination...lodged in the same proceedings on analogous grounds.”

Article 240. Admission of a case for examination

“1. The question of admitting a case for examination shall be decided by the judge-rapporteur...

...

2. A resolution either opening proceedings or refusing to admit the case for examination shall be adopted within fifteen days of the date when the application is received..."

Article 2401. Preparation of a case for examination

“1. The judge-rapporteur shall, within fifteen days from the date on which proceedings are opened, carry out the preparation of the case for examination by the Supreme Court of Ukraine...”

Article 241. Procedure for the examination of a case by the Supreme Court of Ukraine

“...

6. The time-limit for the examination of a case by the Supreme Court of Ukraine shall not exceed one month from the date on which the case is scheduled for examination.”

Article 243. Resolution of the Supreme Court of Ukraine allowing the application

“1. The court shall allow the application if one of the grounds provided for in the first paragraph of Article 237 of this Code applies.

...

5. A resolution of the Supreme Court of Ukraine based on the results of the consideration of an application for review of a court decision on the grounds provided for in sub-paragraphs 1 and 2 of the first paragraph of Article 237 of this Code should contain a conclusion about the divergent application of the legal provision.”

Article 244. Resolution of the Supreme Court dismissing the application

“1. The Supreme Court of Ukraine shall dismiss an application for review if the grounds for review are not confirmed or the law was applied correctly in the court decision subject to review.

The resolution dismissing the application shall be reasoned.

2. The resolution of the Supreme Court of Ukraine dismissing an application for review under the grounds provided in sub-paragraphs 1 and 2 of the first paragraph of Article 237 of this Code owing to the correct application of the law shall contain a conclusion about the application of the legal provision in question.”

3. Other relevant legal instruments

21. The Regulations of the Ministry of Finance and the State Customs Service no. 25/44 of 24 January 2006 on the procedure for handling customs and other payments made during or prior to customs clearance through the State Treasury of Ukraine (Порядок розрахунково-касового обслуговування через органи Державного казначейства України митних та інших платежів, які вносяться до/або під час митного оформлення – “Regulations no. 25/44”) define “excessively paid customs and other charges” for the purposes of those regulations as the amounts of funds paid for various reasons in excess of the amounts provided for by law.

22. The Regulations of the State Customs Service no. 618 of 20 July 2007 on the procedure for refunding taxpayers’ funds recorded in the relevant accounts of the customs authorities as prepayment, customs or other payments erroneously and/or excessively made to the State budget following verification by the customs authorities (Порядок повернення платникам податків коштів, що обліковуються на відповідних рахунках митного органу як передоплата, і митних та інших платежів, помилково та/або надмірно сплачених до бюджету, контроль за справлянням яких здійснюється митними органами) (“Regulations no. 618”) established the procedure for refunding overpaid customs duties. They required taxpayers seeking a refund to submit a written request within 1,095 days, together with copies of the customs declarations and documents demonstrating that they had overpaid. As a rule, the customs authorities were required to examine such requests and provide a response to the taxpayer within one month.

2. relevant judicial practice
   1. Ruling of the Supreme Court of 1 December 2009 in case no. 21‑1170во09

23. In its decision of 1 December 2009 in case no. 21-1170во09, the Supreme Court quashed a ruling of the HAC which had found against a declarant seeking a refund of overpaid customs charges resulting from the customs authorities’ instruction to amend the customs classification code for the imported goods. In that case, the lower courts established that the customs authorities had originally refused to process the goods under the customs classification code initially declared by the taxpayer. Relying on that factual finding, the Supreme Court confirmed that the taxpayer’s right to obtain a refund of the overpaid charges in such cases existed irrespective of whether the misclassification of goods had been the result of the taxpayer’s error or the customs authorities’ instruction.

2. Other rulings of cassation courts of Ukraine

24. According to the available case-law of the HAC referred to by the Office of the Prosecutor General and the customs authorities in their applications for review to the Supreme Court (see paragraph 13 above), following the clearance of imported goods, taxpayers could not claim reimbursement of overpaid customs charges on the basis of the allegedly incorrect determination of the customs value unless such a value had been determined by the customs authorities (see, for example, the decisions of the HAC of 13 May 2014 in case no. 12016/09/1570 and of 3 December 2013 in case no. 2а/0470/5818/11).

25. That line of case-law was subsequently followed by the Supreme Court (see, for example, decisions of the Supreme Court of 9 December 2014 in case no. 21‑205a14; and of 7 July 2015 in case no. 21‑324a14, both cited in Kimberly-Clark Ukraine, TOV v. Ukraine (dec.) [Committee], no. 46821/16, § 17, 19 December 2024).

26. In the subsequent rulings referred to by the applicant companies in their applications to the Supreme Court, the HAC held that the right of declarants to claim a refund of overpaid customs charges on the basis of an allegedly incorrect determination of the customs value depended on the declarants’ ability to demonstrate that the customs authorities had either unlawfully refused to accept the initially declared customs value or erroneously determined it themselves. In those cases, as evidence of the customs authorities’ involvement in the determination of the customs value, the courts recognised their formal decision (see the decision of the HAC of 17 May 2017 in case no. 826/14678/14), a refusal form (картка відмови – see the decision of the HAC of 21 March 2017 in case no. 810141/13-а) or an adjustment sheet (аркуш коригування – see the decision of the HAC of 22 February 2017 in case no. 826/4870/15).

3. relevant international law

International Convention on the Simplification and Harmonization of Customs Procedures (as amended) of 18 May 1973 (“the Revised Kyoto Convention”)

27. The relevant provisions of the General Annex to the Revised Kyoto Convention read as follows:

Chapter 3

3.8 Standard

“The declarant shall be held responsible to the Customs for the accuracy of the particulars given in the Goods declaration and the payment of the duties and taxes.”

Chapter 4

4.18 Standard

“Repayment shall be granted where it is established that duties and taxes have been overcharged as a result of an error in their assessment.”

4.22. Standard

“Where it is established by the Customs that the overcharge is a result of an error on the part of the Customs in assessing the duties and taxes, repayment shall be made as a matter of priority.”

COMPLAINT

28. The applicant companies complained under Article 1 of Protocol No. 1 to the Convention that there had been an unjustified interference with their property rights on account of the domestic authorities’ refusal to reimburse them in respect of overpaid customs duties and VAT. They argued, in particular, that such interference had been unlawful, because of the unpredictable and inconsistent interpretation of the relevant provision by domestic courts, as well as disproportionate.

THE LAW

1. joinder of the applications

29. The Court notes that the subject matter of the applications is similar in terms of the facts and the substantive issues raised by the applicant companies. It therefore finds it appropriate to examine them jointly (Rule 42 § 1 of the Rules of Court).

2. alleged violation of article 1 of protocol no. 1 to the convention
   1. Applications nos. 3672/18, 3678/18, 3681/18, 3808/18, 9709/18 and 13202/18
      1. The parties’ submissions

30. The Government submitted that in six out of the seven applications (namely, applications nos. 3672/18, 3678/18, 3681/18, 3808/18, 9709/18 and 13202/18), the applicant companies had failed to observe the six-month time‑limit for lodging an application with the Court. In that connection, they argued that the applications for review lodged with the Supreme Court on the grounds of an alleged divergence in case-law in the applicant companies’ cases could not be considered an effective domestic remedy, because the case-law cited by them before the Supreme Court had been irrelevant. Thus, in the Government’s view, the time spent pursuing that remedy had not suspended the running of the six-month period.

31. The applicant companies maintained that the applications for review with the Supreme Court on the grounds of divergent case-law constituted an effective domestic remedy within the meaning of Article 35 § 1 of the Convention. Consequently, in their view, the six-month period should be calculated from the dates on which the Supreme Court had rejected those applications.

2. The Court’s assessment

(a) General principles

32. The general principles relating to compliance with the time-limit set out in Article 35 § 1 of the Convention have been summarised in Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, §§ 129-32, 19 December 2017), and Savickis and Others v. Latvia ([GC], no. 49270/11, §§ 130-34, 9 June 2022).

33. As a rule, the six-month period, as in force at the relevant time, runs from the date of the final decision in the process of exhaustion of domestic remedies. However, Article 35 § 1 allows only remedies which are normal and effective to be taken into account, as an applicant cannot extend the strict time-limit imposed under the Convention by seeking to make inappropriate or misconceived applications to bodies or institutions which have no power or competence to offer effective redress for the complaint in issue under the Convention (see, among many other authorities, Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018). Article 35 § 1 of the Convention does not normally require resort to extraordinary remedies, such as an application for retrial or other means of reopening judicial proceedings in a case. Being outside the normal chain of domestic remedies, such extraordinary procedures are not, as a general rule, taken into account for calculation of the time-limit set in Article 35 of the Convention (see, for example, AO “Uralmash” v. Russia (dec.), no. 13338/03, 10 April 2003, and Matanović v. Croatia, no. 2742/12, § 107, 4 April 2017).

34. The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “final decision” or calculating the starting-point for the running of the six‑month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, ECHR 2002-X).

(b) Whether an application for review to the Supreme Court on the grounds of a case-law divergence constitutes a remedy to be exhausted

35. In view of the Government’s objections, the question arises as to whether the applications for review that the applicant companies lodged with the Supreme Court, alleging a divergence in case-law, could be considered an effective domestic remedy which suspended the running of the six-month period.

36. The Court has previously analysed the effectiveness of such remedies in Ukrainian law, albeit under legal provisions that predated the events of the present cases.

37. For example, in MPP Golub v. Ukraine (dec.) (no. 6778/05, 18 October 2005), and Agrokompleks v. Ukraine (no. 23465/03, § 119, 6 October 2011) the Court held that applications for review lodged with the Supreme Court under the Code of Commercial Procedure did not undermine the principle of legal certainty, could be considered as effective, had to be exhausted and counted for the calculation of the six-month time limit. In administrative proceedings, however, applications to the Supreme Court, governed by a different set of procedural rules, namely the CAJ, as in force at the relevant time, were considered not to be an effective remedy as the Supreme Court was found to be acting as an extraordinary review instance in the proceedings in question (see Karuna v. Ukraine (dec.), no. 43788/05, 3 April 2007, and Bulanov and Kupchik v. Ukraine, nos. 7714/06 and 23654/08, § 32, 9 December 2010).

38. Following the legislative changes of 2010, the rules governing the Supreme Court’s review of cassation courts’ decisions were significantly amended. In addition to being harmonised across various types of proceedings (including civil, commercial and administrative), the Supreme Court’s role in such review proceedings became even more limited than under the legal framework examined in Karuna and Bulanov. In view of these circumstances, the Court in Cosmos Maritime Trading and Shipping Agency v. Ukraine (no. 53427/09, §§ 60-62, 27 June 2019) expressed doubts whether such new procedure could be considered an effective remedy.

39. The Court observes that the procedural rules governing applications to the Supreme Court, which were analysed in Cosmos Maritime Trading and Shipping Agency, were further amended on various points on 28 March 2015 when Law No. 192-VIII of 12 February 2015 entered into force (see paragraph 20 above). As the applicant companies pursued their cases before the Supreme Court under those new provisions, the Court has thus to assess whether such review became an effective remedy within the meaning of Article 35 § 1 of the Convention and is therefore relevant for the calculation of the six-month time-limit.

40. In this respect the Court notes at the outset that the new procedure which came into effect on 28 March 2015 allowed parties in their applications for review before the Supreme Court to rely not only on case-law which existed at the time when a contested ruling of the cassation court was delivered, but also on case-law which emerged thereafter.

41. Having regard to the above, the Court considers it necessary, in the examination of the question whether an application for review to the Supreme Court constituted an effective domestic remedy after 28 March 2015, to distinguish between: (i) cases where litigants relied on an alleged divergence in case-law which existed, on arguable grounds, at the time of the contested cassation ruling ("pre-existing case-law divergence”), and (ii) cases where the ground on which review was sought was, as in the present cases, an alleged divergence that emerged after the contested cassation ruling (“newly emerged case-law divergence”).

42. As will be demonstrated below, despite their formal classification in domestic law as a single procedure, the differences in applicable time-limits and underlying legal grounds render them, in essence, distinct remedies, which warrants their separate examination.

(i) Review on the grounds of a pre-existing case-law divergence

43. The Court observes at the outset that the time-limit for lodging applications with the Supreme Court on such grounds was three months from the contested cassation ruling (see Article 238 of the CAJ cited in paragraph 20 above). This time-limit, in the Court’s view, cannot be regarded as unduly lenient in terms of maintaining legal certainty (see, for example, Maresti v. Croatia, no. 55759/07, § 25, 25 June 2009, where the period of one month was considered to be strict, and Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009, where the period of three months was found to be compatible with the principle of legal certainty).

44. In addition to the clearly defined three-month time limit for lodging applications with the Supreme Court, the Court observes that the review proceedings were also subject to strict deadlines at each stage of the examination of the application. Thus, the initial assessment of its compliance with formal admissibility requirements was to be completed by a single judge within three days after receipt of the application (see Article 2392 of the CAJ). It was then to be assessed within fifteen days (see Article 240 of the CAJ) and, once declared admissible, the application was to be considered by the Supreme Court within one month after the scheduling of the case for hearing (see Article 241 of the CAJ).

45. It is also important to note that, if the application was dismissed by the Supreme Court (for example, for failure to justify the alleged case-law divergence), an interested party was precluded from reapplying on analogous grounds, for instance, by referring to other examples of an alleged case-law divergence (see Article 2392 (4) of the CAJ cited in paragraph 20 above and contrast with Denisov v. Russia (dec.), no. 33408/03, 6 May 2004, and Prisyazhnikova and Dolgopolov v. Russia, no. 24247/04, § 25, 28 September 2006, where the domestic law allowed the parties to lodge consecutive applications for review).

46. Thus, irrespective of whether the application for review was dismissed at the preliminary stage or admitted for examination and decided on the merits, there was always a possibility to determine the final point in the domestic litigation (contrast with Martynets v. Russia (dec.), no. 29612/09, 5 November 2009).

47. Moreover, the Court notes that the application for review had to be lodged by an interested party directly with the Supreme Court. Its success depended entirely on the parties’ arguments and submissions. It was thus directly accessible to the parties and did not depend on the discretionary powers of any public official (see Williams v. the United Kingdom (dec.), no. 32567/06, 17 February 2009, contrast with Gurepka v. Ukraine (no. 2), no. 38789/04, § 60, 8 April 2010, and Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, § 66, 12 May 2015).

48. The Court is therefore of the view that, under the rules applicable at the relevant time, the decisions of cassation courts were not liable to challenge indefinitely, but only once, before a supreme judicial instance, upon the party’s request, on the basis of restricted grounds of a case-law divergence and within a clearly defined and limited time-frame (see, for a similar reasoning, Kovaleva and Others, cited above). In the Court’s view, the role of the Supreme Court at the relevant time was therefore not to act as an extraordinary review instance, but to ensure consistency in the case-law by clarifying the interpretation of legal provisions and addressing existing divergences in the decisions of the cassation courts.

49. Thus, the Court considers that an application for review to the Supreme Court on the basis of a pre-existing case-law divergence was an ultimate element in the chain of domestic remedies at the disposal of the parties.

50. Therefore, where the Convention issues subsequently raised before the Court stemmed from or were sufficiently related to a pre-existing case-law divergence, the possibility to submit an application for review to the Supreme Court on grounds of that divergence could be considered as an effective domestic remedy for the purposes of Article 35 § 1 of the Convention.

(ii) Review on the grounds of a newly emerged case-law divergence

51. The Court, however, cannot reach the same conclusion where applications for review to the Supreme Court were based on an alleged case-law divergence that emerged after the examination of the applicant’s case by the court of cassation.

52. Turning first to the relevant time-limits, the Court observes that under Article 236 of the CAJ, as in force at the relevant time, such an application for review must be lodged within three months of the decision giving rise to the alleged divergence and not later than one year from the date of the contested cassation ruling (see paragraph 20 above). Therefore, potential uncertainty is maintained over a period of one year, seeing that the newly emerged case-law, as a triggering event, could materialise at any moment within the one-year window. In this regard, even if the length of one-year time-limits has been found in some circumstances as reconcilable with the Convention requirements for an effective remedy (see, for example, Kashlan v. Russia (dec.), no. 60189/15, § 27, 19 April 2016, and Anikeyev and Yermakova v. Russia (dec.), nos. 1311/21 and 10219/21, § 21, 13 April 2021, concerning a one-year time-limit in the criminal cassation review), it remains the fact that it can be seen as a factor pointing to the extraordinary nature of the remedy at issue.

53. Secondly, the availability and success of such applications depended entirely on a factor outside the parties’ control, namely on a hypothetical possibility of further case-law evolution. Unlike the situation regarding review on the grounds of pre-existing case-law divergences, where seeking it is based on case-law developments that are known or ascertainable even before the cassation court judgment, the very nature of the grounds on which review for newly emerged divergences could be sought at the relevant time generates uncertainty, as they depended on future hypothetical developments.

54. Reliance on this remedy was therefore based on a speculative hope that such a divergence might emerge, effectively encouraging parties to constantly monitor case-law for tactical openings. For this reason, this remedy could not be considered “sufficiently certain” or that it could offer an interested party “reasonable prospects of success”, as required by the Court’s case-law (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004; Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II; Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 74, 25 March 2014; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 85, 9 July 2015).

55. Lastly, the Court observes that the possibility of challenging a cassation court ruling on the basis of case-law that did not exist at the time when the contested ruling was adopted meant that such applications for review were akin to appeals on the grounds of new facts. Therefore, even though in the Ukrainian legal system they were formally called “applications for review”, in their essence these requests were not in any way different from requests for reopening (see “Energia” Producers’ Cooperative v. Armenia (dec.), no. 31769/04, 9 December 2004), that are not, as a rule, considered as effective remedies (see Riedl-Riedenstein and Others v. Germany (dec.), no. 48662/99, 22 January 2002; Korkmaz v. Turkey (dec.), no. 42576/98, 17 January 2006, with further references; Samsel v. Poland (dec.), no. 55100/11, §34, 27 August 2013). According to the Court’s case-law, applicants are not required to avail themselves of such remedies for the purposes of the exhaustion rule (see Korzeniak v. Poland, no. 56134/08, § 39, 10 January 2017).

56. In the light of the above considerations, the Court concludes that applications for review to the Supreme Court, in which applicants alleged a case-law divergence that emerged after the contested cassation rulings in their cases were adopted, do not constitute an effective domestic remedy within the meaning of Article 35 § 1 of the Convention.

(c) Determination of the “final decisions” in the present cases

57. Turning to the present cases, the Court notes that the applicant companies in their applications to the Supreme Court relied on case-law which emerged after the contested cassation rulings (see paragraph 16 above). In the light of its finding above concerning the ineffectiveness of such remedies (see paragraph 56 above), the Court considers that the Supreme Court’s decisions on those applications cannot be taken into account for the calculation of the time-limit set in Article 35 § 1 of the Convention.

58. Consequently, the dates of the final domestic decisions in applications nos. 3672/18, 3678/18, 3681/18, 3808/18, 9709/18 and 13202/18 were the dates of the relevant decisions of the HAC dismissing the applicant companies’ claims (see the appendix). The Court therefore upholds the Government’s preliminary objection and finds that the applicant companies’ above‑mentioned applications were lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Application no. 60680/16
   1. The Government’s submissions

59. The Government further argued that the first applicant company had no legitimate expectation in respect of the allegedly overpaid customs charges, as those overpayments had been entirely caused by the applicant company’s own conduct, without any involvement by the State authorities.

60. Alternatively, the Government contended that the first applicant company’s application was groundless. In particular, the customs authorities had not been involved in the determination of the declared customs value of the goods. The declared customs value of each of the imported goods corresponded to the customs value of similar goods imported by other declarants and therefore there had been no basis for the customs authorities to reject the declarations. Moreover, the applicant company itself had calculated the customs duties and VAT and had paid those amounts without raising any reservations.

61. Lastly, the Government maintained that the interference with the first applicant company’s possessions had complied with the principle of lawfulness and had pursued the legitimate aim of ensuring fiscal stability. In their view, it had also been proportionate.

2. The first applicant company’s submissions

62. Referring to the Court’s findings in S.A. Dangeville v. France (no. 36677/97, § 48, ECHR 2002-III), the first applicant company asserted that it had a valid claim against the State for the reimbursement of the excessively paid customs charges, thereby giving rise to a legitimate expectation of obtaining effective enjoyment of that property right. The authorities’ refusal to refund the overpaid amounts had constituted an interference with its property rights.

63. It further contended that the customs authorities had forced it to declare the customs value of the imported goods at a level significantly higher than their actual value. It had chosen to follow the customs authorities’ instructions to overstate the declared customs value because some of the imported goods had been perishable, meaning that any delay in their customs clearance could have caused significant financial losses. Furthermore, relying on the definition of “excessively paid customs and other charges” in Regulation no. 25/44 (see paragraph 21 above), the first applicant company argued that it should have been refunded the customs charges irrespective of whether the overpayment had resulted from an error on its part or an error on the part of the customs authorities, as it was the duty of the customs authorities to verify the accuracy of the declared customs value. In addition, the customs authorities should not have proceeded with the “fall-back method” of determining the customs value, as that method was reserved under Ukrainian law for when no other methods were available.

64. In the first applicant company’s view, the interference with its property rights had not been in accordance with the conditions provided for by law, as the relevant domestic law had not met the requirement of foreseeability. Relying on the case-law of the Supreme Court and the HAC (see paragraphs 23 and 26 above), it submitted that the interpretation of the relevant legal provisions by the cassation courts in its case had been both unpredictable and inconsistent. Lastly, the first applicant company argued that the interference in question had not pursued a legitimate public interest and had imposed an excessive individual burden, particularly in the light of the impact of the overpaid charges on its ability to conduct further commercial activities.

3. The Court’s assessment

65. Regarding the applicability of Article 1 of Protocol No. 1 to the Convention, the issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the first applicant company an entitlement to a proprietary interest sufficiently recognised by Ukrainian law to constitute a “possession” protected by Article 1 of Protocol No. 1 (see, among other authorities, Intersplav v. Ukraine, no. 803/02, §§ 30-32, 9 January 2007).

66. In this regard, the Court observes that in the present case the domestic courts at three levels of jurisdiction initially recognised the first applicant company’s entitlement under Ukrainian law to the reimbursement of the disputed customs charges and ruled in its favour. Those rulings became final under domestic law and enforceable. It was only after the Supreme Court’s intervention that the HAC’s ruling in the first applicant company’s favour was quashed and that its claim was eventually dismissed on the grounds that the first applicant company had no right to the reimbursement of the disputed amounts (see paragraph 15 above).

67. The Court does not consider it necessary to definitively resolve the question whether a “possession” was at stake in the present case because even assuming that the circumstances of the case, considered as a whole, conferred on the first applicant company an entitlement to a proprietary interest sufficiently recognised to constitute a “possession”, the first applicant company’s application is in any event inadmissible for the reasons set out below (see, for a similar approach, mutatis mutandis, Maggio and Others v. Italy, nos. 46286/09 and 4 others, § 59, 31 May 2011, and Kubát and Others v. the Czech Republic, nos. 61721/19 and 5 others, § 66, 22 June 2023).

68. The Court will thus proceed on the assumption that Article 1 of Protocol No. 1 applies and that the refusal to grant the first applicant company’s reimbursement claim resulted in an interference with its property rights (see S.A. Dangeville, cited above, § 48; Buffalo S.r.l. in liquidation v. Italy, no. 38746/97, § 29, 3 July 2003; and Société CRT France International v. France (dec.), no. 29395/09, §§ 28-30, 3 March 2015).

69. The Court reiterates that in order for such an interference to be compatible with Article 1 of Protocol No. 1 it must be lawful, be in the general interest and be proportionate, that is, it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, for example, The J. Paul Getty Trust and Others v. Italy, no. 35271/19, § 281, 2 May 2024). The principle of lawfulness also presupposes a certain quality of the applicable provisions of domestic law (see, among many other authorities, Beyeler v. Italy [GC], no. 33202/96, §§ 109-10, ECHR 2000-I).

70. In the Court’s view, the impugned decision of the cassation court in the present case was based on the provisions of domestic law which set out, in particular: (i) the standard of diligence required of a declarant when declaring a customs value in a customs declaration (Article 262 of the Customs Code of 2002 and Articles 51, 52 and 54 of the Customs Code of 2012); and (ii) the conditions for reimbursement of allegedly overpaid customs charges (Article 264 of the Customs Code of 2002 and Article 301 of the Customs Code of 2012) (see paragraphs 14-15 and 18-19 above).

The first applicant company essentially argued that the domestic courts’ decisions rejecting its reimbursement claim had been contrary to the law because they had been based on an interpretation of the above provisions which in its view had been incorrect and unforeseeable.

71. The Court reiterates in this connection that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law since the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see Zagrebačka banka d.d. v. Croatia, no. 39544/05, § 263, 12 December 2013). Moreover, in the tax sphere, States may be afforded some degree of additional deference and latitude in the exercise of their fiscal duties under the lawfulness test, and, in view of the complexity of the relevant field of regulation, corporate entities, as opposed to individual taxpayers, may be required to act with additional caution and diligence by consulting competent specialists in this sphere (see OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, § 559, 20 September 2011).

72. Turning to the circumstances of the present case, the Court considers that the legal basis for the interference did not lack clarity and foreseeability. In particular, the successive Ukrainian Customs Codes (the Customs Code of 2002 and the Customs Code of 2012) and the relevant international standards in this field (see 3.8 Standard of the Revised Kyoto Convention, quoted in paragraph 18 above) clearly placed the responsibility for ensuring the accuracy of the information in a customs declaration, including the customs value of the imported goods, on the declarant. As established by the domestic courts, the customs authorities merely agreed with the higher values as declared by the first applicant company and in doing so they acted within their powers and in accordance with the applicable laws. Mindful of its limited role regarding the interpretation and application of the domestic law, particularly because of the complexity of the relevant field of regulation, the Court sees no reason to consider those findings of the domestic courts arbitrary or manifestly unreasonable.

73. The first applicant company did not provide the Court with any examples of domestic case-law where the notion of “excessively paid customs and other charges” in Regulation no. 25/44 (see paragraph 21 above) had been interpreted to impose a blanket obligation on the State to refund every alleged overpayment, including where a declarant intentionally declared an overstated value of imported goods. Nor did the ruling of the Supreme Court cited by the first applicant company support this stance (see paragraph 23 above). In that particular case the Supreme Court did not refer to Regulation no. 25/44 and instead based its conclusions on the lower courts’ factual finding that the customs authorities had refused to process goods under the customs classification code assigned by the declarant. In the present case, however, no such facts have been established (compare Polimerkonteyner, TOV v. Ukraine, no. 23620/05, § 18, 24 November 2016).

74. As previously noted, the first applicant company submitted to the Court that it had been forced to overstate customs value by the customs authorities. In this respect, it appears that the domestic legal framework provided the first applicant company with a clear avenue to remedy this type of situation by challenging the customs authorities’ refusal to proceed with the customs clearance on the basis of the originally indicated customs values (see paragraph 19 above).

75. While the Court accepts the first applicant company’s argument that pursuing such legal action may have further delayed customs clearance and resulted in financial losses (including operational fees, damage to perishable goods, and other related expenses), it sees no convincing explanation as to why the first applicant company could not have initiated legal proceedings and subsequently sought compensation for any such losses from the State authorities. Nor did the first applicant company explain why it failed to consider alternative means of securing compliance with customs formalities pending resolution of the dispute, such as, for instance, seeking a court injunction or providing a security deposit, mechanisms commonly available in customs-related litigation in many legal systems. Instead of pursuing these avenues, the first applicant company repeatedly made decisions that, in the Court’s view, inevitably involved an element of legal and financial risk, namely, declaring what it believed to be an overstated customs value and seeking the reimbursement of the allegedly overpaid charges retrospectively.

76. The Court therefore agrees with the Government that the alleged overpayment stemmed from the first applicant company’s own actions. Accordingly, under domestic law the onus was on it to produce evidence of the alleged involvement of the authorities in overstating the customs value. In contrast with the domestic case-law cited by the first applicant company (see, for example, paragraph 26 above), in the instant case the domestic courts found that no evidence of such involvement existed (see paragraphs 14-15 above). The Court sees no reasons to disagree with those findings.

77. In these circumstances, given the wide margin of appreciation that a Contracting State enjoys when framing and implementing policies in the area of taxation (see, among other authorities, Gasus Dosier-und Fördertechnik GmbH v. the Netherlands, 23 February 1995, § 60, Series A no. 306-B, and “Bulves” AD v. Bulgaria, no. 3991/03, § 63, 22 January 2009), the approach pursued by the domestic courts served the legitimate aim of fiscal stability and struck a “fair balance” between the general interest of the community and the need to protect fundamental rights of persons.

78. Having regard to the above, the Court finds that, even assuming that Article 1 of Protocol No. 1 is applicable, the first applicant company’s complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

1. Decides to join the applications;
2. Declares the applications inadmissible.

Done in English and notified in writing on 9 October 2025.

{signature_p_1} {signature_p_2}

Victor Soloveytchik Kateřina Šimáčková
Registrar President

Appendix

List of cases