Misdemeanor liability of natural person for driving a motor vehicle not imported in the Republic of North Macedonia

 
INTRODUCTION
In this particular case we are analyzing Verdict UPRZ. No. 66/2022 adopted by the High Administrative Court on 13.05.2022 upon an appeal from the plaintiff, and from the Customs Administration of the Republic of North Macedonia against UPRC. No. 310/2021 and UPRC. No. 311/2021 adopted by the Administrative Court of the Republic of North Macedonia on 02.12.2021 with reference to misdemeanor liability of natural person for driving a motor vehicle not imported in the Republic of North Macedonia. This verdict of the High Administrative Court shall be analyzed from two aspects: the first one in the part of establishing misdemeanor liability and the second one pertaining to the manner and procedure of ruling a misdemeanor measure when establishing misdemeanor liability.

FACTS OF THE CASE
The plaintiff FM from Skopje on 27 September 2020, driving a motor vehicle registered on the name of a legal entity from the Republic of Serbia, rent-a-car company, and rented on the name of her husband, was stopped by police officers for a regular police control. After completing the police control it was established that the plaintiff does not hold appropriate documentation for the vehicle to prove ownership and authorization to drive the car.  

Also, the police officers have established that the plaintiff did not hold documentation to prove the right to drive the motor vehicle on the territory under customs jurisdiction of the Republic of North Macedonia, although she was aware or due to the circumstances of the case, she must have been aware, that the vehicle is subject to customs misdemeanor for bringing the goods to market. Therefore, the motor vehicle was seized from the plaintiff by SVR Kumanovo for alleged violation of the Customs Act, and on 26.10.2020 SVR Kumanovo submitted a Request to initiate a misdemeanor proceeding against the plaintiff to the Commission for Deciding on Misdemeanors within the Customs Administration of the Republic of North Macedonia. The Commission, acting upon the Request for initiating a misdemeanor proceeding adopted a Decision Prk. No. 0291/20 dated 09.12.2020 whereby it was established that the plaintiff has committed the misdemeanor pursuant to Article 265 in conjunction with Article 263 paragraph 3 in conjunction with paragraph 1 item 8 of the Customs Act and has thus imposed a fine in the amount of 250 (two hundred and fifty) Euro, in Macedonian Denar i.e. 15.375,00 MKD, and costs for the proceeding in the amount of 250,00 MKD, that the plaintiff shall be obliged to pay in a period of 8 (eight) days as of the date the decision becomes lawful. Additionally, the Commission imposed the plaintiff the mandatory anticipated special misdemeanor measure - seizing of passenger motor vehicle owned by a legal entity from the Republic of Serbia.

The plaintiff has filed a lawsuit against the Decision Prk. No. 0291/20 to the Administrative Court on 25.08.2021, contesting the application of the Customs Act in the particular case for the motor vehicle rented from the rent-a-car company as well as identification of the plaintiff with reference to the misdemeanor liability for customs misdemeanor. The Administrative Court of RNM on 25.08.2021 adopted the Judgment no. 17/2021 and annul the Decision. With this Judgment, the Administrative Court has established that there are no conditions for import or temporary import of the motor vehicle, since the subject vehicle is a vehicle owned by a rent-a-car company from the Republic of Serbia authorized for renting vehicles for use, whereas the duration of its use is established in line with the requirements and needs of the party requesting the service, being regulated with a Contract.

The Commission for Deciding on Misdemeanor within the Customs Administration of the Republic of North Macedonia following the Judgment UPRC no. 17/2021 dated 25.08.2021 from the Administrative Court of RNM adopted new Decision Prk. No. 0291/20 no. 28-058461/20-00021 from 27.09.2021 that has again established that the plaintiff has committed customs misdemeanor pursuant to Article 265 in conjunction with Article 263 paragraph 3 in conjunction with paragraph 1 item 8 from the Customs Act and has ruled the identical misdemeanor sanction and imposed misdemeanor measure.
Again, the plaintiff has filed a lawsuit against the Decision PRK. No. 0291/20 no. 28-058461/20-00021 dated 27.09.2021 to the Administrative Court of RNM which on 03.12.2021 adopted a Verdict UPRC.no. 310/2021 and UPRC.no. 311/2021 whereby the lawsuit was partially accepted, while the contested decision in the part of the pronounced misdemeanor measure seizing of items-passenger motor vehicle and in paragraph 2 of the disposition of the decision was altered, and the request of the plaintiff, for returning the seized motor vehicle temporarily seized on 27.09.2020 was accepted, and the vehicle is returned to the plaintiff. For the remaining part, the Administrative Court has acted fully opposite to its previously established court practice being confirmed with the Judgment UPRC.no. 17/2021 dated 25.08.2021, whereas in the remaining part i.e. in the part referring to the committed customs misdemeanor, the Decision no. 28-058461/20-00021 PRK no.0291/20 dated 27.09.2021 from the Commission for Deciding on Misdemeanors within the Customs Administration of the Republic of North Macedonia remains the same.

Dissatisfied with the Judgment UPRC.no. 310/2021 and UPRC.no. 311/2021 adopted by the Administrative Court of the Republic of North Macedonia on 02.12.2021, the plaintiff has filed an appeal to the High Administrative Court of the Republic of North Macedonia. Customs Administration of the Republic of North Macedonia also filed an appeal against the Judgment UPRC.no. 310/2021 and UPRC.no. 311/2021 from 02.12.2021. The plaintiff has contested the judgment from the Administrative Court, since she considered that she should not bear misdemeanor liability for committing customs misdemeanor, but for not holding a power of attorney authorizing her to drive the referred motor vehicle, i.e. liability pursuant to the Law on Safety in Traffic, since the motor vehicle cannot be subject of customs procedure as it is rented under a Contract with a rent-a-car company from the Republic of Serbia.

After submitting replies to the appeal from the plaintiff and to the Customs Administration of RNM, the High Administrative Court on 13.05.2022 adopted the Judgment UPRZ.no. 66/2022. With this judgment, the High Administrative Court has accepted the appeal from the plaintiff and altered the Verdict UPRC.no. 310/2021 and UPRC.no. 311/2021 dated 02.12.2021 adopted by the Administrative Court and decided that the appeal from the plaintiff is accepted and the Decision Prk.no. 0291/20 No. 28-058461/20-00021 from 27.09.2021 of the Customs Administration of the Republic of North Macedonia is annulled. It rejected the appeal of the Customs Administration of the Republic of North Macedonia filed against the Verdict UPRC.no. 310/2021 and UPRC.no. 311/2021 dated 02.12.2021 from the Administrative Court of RNM as ill-founded.

In the Judgment UPRZ.no. 66/2022 from 13.05.2022 the High Administrative Court stated that in the particular case the factual situation was not fully established by both, the court and the misdemeanor body. According to the High Administrative Court due to mis-established factual situation the question whether the plaintiff has committed the misdemeanor she is being charged with remains open, as the plaintiff was driving the vehicle that her husband has rented from a rent-a-car company from the Republic of Serbia. Hence, the High Administrative Court has stated that in this case there are no conditions for import or temporary import since this refers to a vehicle in ownership of a rent-a-car company from the Republic of Serbia, authorized for renting vehicles for use, whereas the duration of its use is established in line with the requirements and needs of the party requesting the service, being regulated with a mutual agreement.

Thus, the High Administrative Court considered that in the particular case Article 265 of the Customs Act was incorrectly applied since the plaintiff has neither bought, sold, sold out of stock, received as a gift, concealed, received to keep or drive, stored, used or received the car in ownership, but according to the High Administrative Court the plaintiff with her action drove the vehicle without being authorized for it with corresponding power of attorney, which can be considered as misdemeanor pursuant to another law i.e. the Law on Safety in Road Traffic.

In the part of the imposed misdemeanor measure, the High Administrative Court has stated that considering that subject of the administrative dispute is the Decision from the Commission for Deciding on Misdemeanors within the Customs Administration of the Republic of NM no. 28-058461/20-00021 Prk. No. 0291/20 dated 27.09.2021, which is annulled in its entirety, and the said Decision in paragraph II contains the decision to seize the passenger motor vehicle registered on the name of the legal entity from the Republic of Serbia moreover due to the fact that according to the High Administrative Court the plaintiff has not committed the misdemeanor being charged for, which is why the misdemeanor measure – seizing of motor vehicle for committed misdemeanor cannot be imposed, i.e. the said measure is unfounded. On the other hand, the High Administrative Court has confirmed that the appeal from the Customs Administration is ill-founded in the part of the lawfulness of the misdemeanor measure, pointing out that the seizing is contrary to Article 71 of the Law on Misdemeanors since the request for initiating misdemeanor proceeding is submitted after the expiry of 15 days as of the day of the temporary seizing of the vehicle.

Hence, the High Administrative Court found that it is necessary to rule again on the misdemeanor liability of the plaintiff and in the repeated proceeding the Customs Office shall take into consideration the indications from this verdict and shall establish whether the plaintiff has committed the misdemeanor she is being charged with, i.e. whether the described action of the plaintiff presents legal grounds to qualify as misdemeanor as defined with the Customs Act.

LAW
When adopting the Verdict UPRZ.no. 66/2022 on 13.05.2022, the High Administrative Court applied the provisions from the Customs Act, the Law on Misdemeanors and the Criminal Code.

Pursuant to Article 91 of the Customs Act (“Official Gazette of the Republic of Macedonia” no. 39/2005 ... 144/2018) by bringing goods to market foreign goods obtain status of domestic goods. Pursuant to paragraph 2 of the same Article in order to bring goods to market, the trade policy measures shall apply, and other formalities, as prescribed for import of goods, and duty payment, as prescribed by the customs and other regulations, shall be completed.

Pursuant to Article 265 of the referred law, a legal entity or sole proprietor, responsible person in the legal entity or in the sole proprietor or a natural person who shall buy, sell, sell off stock, receive as gift, conceal, receive to keep or drive, store, use or receive in ownership on whatsoever base goods for which s/he is aware or according to the circumstances of the case, must have been aware that it is a misdemeanor in accordance with Articles 263, 263-a or 264 of this law, and in case the perpetrator has committed any of the acts referred to in Articles 263, 263-a or 264 of this law, s/he shall be imposed a fine prescribed for the perpetrator with Articles 263, 263-a and 264 of this law.

Pursuant to Article 267 paragraph 1 of the referred law, “The goods that is subject of the misdemeanor referred to in Articles 263 item 1 to 9 of this law and 265 in conjunction with Article 263 item 1 to 9 of this law, shall be seized. Pursuant to Article 267 paragraph 5 of the referred law, “If the goods being subject of the misdemeanor is not found, the perpetrator shall pay for its value.”

Pursuant to Article 1 of the Law on Misdemeanors (“Official Gazette” no. 96/19) this law regulates the general conditions for prescribing misdemeanors and misdemeanor sanctions, general conditions for establishing misdemeanor liability, for imposing and enforcing misdemeanor sanctions and prescribes the misdemeanor proceedings.

Pursuant to Article 2 of the referred law, the provisions of the general part of the Criminal Code shall accordingly apply on the misdemeanor and the misdemeanor liability.

Pursuant to Article 3 paragraph 1 of the Criminal Code (“Official Gazette” no. 37/16…196/15) the applicable law in the time when the criminal act was committed shall apply to the perpetrator of the crime. (2) If after committing the crime the law is amended once or several times, the law that ensures mitigation for the perpetrator shall apply.

ANALYSIS OF THE JUDGEMENT
The High Administrative Court by adopting the Judgment UPRZ.no. 66/2022 from 13.05.2022 in clear and unambiguous manner establishes positive court practice in the misdemeanor law related to three aspects.
The first aspect is the legal standing of the High Administrative Court that refers to the application of the Customs Act. Namely, according to the High Administrative Court, motor vehicle used by a natural person or legal entity on the basis of a concluded agreement with a rent-a-car company from a foreign country cannot be subjected to customs duties by the Customs Administration of the Republic of North Macedonia. With this legal standing, the High Administrative Court also confirms the legal standing of the Administrative Court of RNM presented in the Verdict UPRC.no.17/2021 dated 25.08.2021.
The second aspect is the legal standing of the High Administrative Court that refers to establishing misdemeanor liability. Namely, the High Administrative Court in this verdict has established that a natural person who without authorization drives a motor vehicle rented from a foreign rent-a-car company cannot be charged for a misdemeanor pursuant to the Customs Act, rather s/he can be possibly charged for misdemeanor for unauthorized driving of motor vehicle pursuant to the Law on Safety in Traffic.
And the third aspect is the legal standing pertaining to the application of the Law on Misdemeanors in the part of imposing misdemeanor measure – seizing of items in misdemeanor proceedings. Particularly, the High Administrative Court with this judgement has actually confirmed its practice from the Judgement UPRZ no. 331/2019 dated 18.09.2019 that clearly and unambiguously points that when authorized officials temporarily seize items they shall be obliged in a period of 15 days as of seizing the items to submit a request for initiating a misdemeanor proceeding to the court of jurisdiction, i.e. to the misdemeanor body and to notify it of the temporary seizing of items. If the authorized officials do not submit a request for initiating a misdemeanor proceeding, the court i.e. the misdemeanor body on the grounds of the submitted request from the party whose items have been seized shall adopt a decision to return the items. Hence, the High Administrative Court following the confirmation from the Administrative Court that SVR Kumanovo has submitted a request to initiate a misdemeanor proceeding after 15 days as of seizing the motor vehicle, established that the competent body must return the seized vehicle to the plaintiff.