Yaylali against Serbia

The European Court of Human Rights (hereinafter: the Court) is21. May and June 25, 2024. year, and on September 17, 2024, announced the verdict in the caseYaylalı against Serbia, number15887/15.

It's a verdictpassed unanimouslylo seven-member Council.

THE CIRCUMSTANCES CASES

The applicant is a Turkish citizen born in 1964, who lives in Ede in the Netherlands.

In mid-June 2013, the applicant entered Serbia in a passenger vehicle. After passport control, customs control and the police stopped him and asked if he had anything to report. The applicant reported 1,500 euros and personal belongings. Customs officers first searched the applicant's car and luggage, and then proceeded to a personal search during which they found a bag with eight used gold bracelets weighing 254 grams (later valued at a total of 7,620 euros).

The bracelets were temporarily confiscated on the same day, and proceedings were initiated against the applicant before the Misdemeanor Court in Sremska Mitrovica (Sid Division) for not declaring the jewelry during customs control.

The applicant stated that the bracelets belonged to his wife and submitted a receipt for the purchase of the bracelets at a price of 12,825 euros. He further stated that he was transporting them to Turkey where he and his wife intended to buy a family house, and that he wanted to sell the bracelets if they needed more money to buy a house. Finally, he stated that he did not know that he had to declare gold objects to customs when entering Serbia.

The misdemeanor court in Sremska Mirovica - Division in Šid found the applicant guilty of a misdemeanor under Article 292, paragraph 1, item 3) of the Customs Act, imposed a fine of 55,000 dinars (about 665 euros at the time), and ordered him to pay costs procedure of 1,000 dinars (about 12 euros at that time) and determined the protective measure of confiscation of bracelets as an object of misdemeanor, which is a mandatory sanction in accordance with the Customs Law.Misdemeanor Appellate Court - Novi Sad Division isOn July 2, 2013, he confirmed the first-instance verdict.

On July 31, 2013, the applicant submitted a constitutional appeal to the Constitutional Court in which, among other things, he pointed out that the measure of confiscation of items - legally acquired jewelry - is illegal, unnecessary and disproportionate, claiming that by not reporting the bracelets, he did not harm the Republic of Serbia, and that would be a fine sufficient deterrent to protect the public interest.

On September 25, 2014, the Constitutional Court rejected the applicant's constitutional appeal as obviously unfounded. The Constitutional Court found that in this particular case it is the property of the applicant, that the total value of the bracelets in question was 12,825. euros and that his wife acquired them in a legal way, and he assessed that in this particular case the property in question is protected by Article 58 of the Constitution. The Constitutional Court further assessed that the confiscation of the bracelets from the applicant represented an interference with the right to property, but that the confiscation was legal and properly justified, since it was applied as a mandatory measure in accordance with the law, and therefore it is not even necessary to examine the arguments about the lack of proportionality.

COMPLAINTS OF THE APPLICANT AND THE PROCEDURE BEFORE THE COURT

The applicant submitted the petition to the Court on March 25, 2015.

In the petition, he complained about the violation of the right to property protection from Article 1 of Protocol No. 1 to the Convention, because the measure of permanent confiscation of personal and legally acquired gold jewelry, which he did not declare to customs, was disproportionate and unjustified.

THE DECISION THE COURT

• Permissibility

First of all, the court, on its own initiative, assessed whether the applicant in the specific case has the status of a victim, since the gold bracelets that were taken from him were owned by his wife.

In this sense, the Court stated that, referring to its practice, the applicant can submit a petition to the Court if he fulfills two conditions: 1) he falls into one of the categories of persons listed in Article 34 of the Convention (any person, non-governmental organization or group of persons) ; 2) that he can prove that he is a victim of a violation of the Convention.

Although in a number of cases the Court declared property complaints inadmissible due to the lack of victim status of the applicants because they did not claim or provide evidence that the seized property belonged to them, the Court assessed that the specific circumstances of this specific case differ.

Namely, the Court noted that the applicant claimed before the Constitutional Court that the bracelets belonged to his wife, and that the Constitutional Court expressly recognized that the bracelets were his property, which had been legally acquired by his wife, and that he had "property" that gave him the right to property protection from Article 58 of the Constitution. Since the Government did not dispute the victim status of the applicant, the Court stated that it is not in a position to question the determination of the facts by the Constitutional Court.

The court further noted that, in accordance with the provisions of the Customs Law, undeclared goods are confiscated as the subject of a misdemeanor regardless of whether they are of legal origin and whether the perpetrator is their owner or not.

Bearing in mind the specific circumstances of the specific case, as well as the fact that the jewelry was worn for the purpose of potential sale in order to purchase a joint family home, the Court assessed that the applicant should be considered a victim in the sense of Article 34 of the Convention.

• Foundation

Applying general principles to the specific case, the Court assessed that the confiscation of the jewelry in question representedmixing to the applicant's right to peaceful enjoyment of property.

The court further assessed that there was interferencein accordance with the law (Art. 63, 65, 292, paragraph 1, point 3) and 298 of the Customs Law), but reminded that the existence of a legal basis in domestic law sȃmo according to to myself it is not enough yes satisfy principle legality,which beside that assumes yes are will be valid provisions domestic of the law enough available,precise and predictable in own apply(quality of law). However, the Court considered that in this particular case it should not deal with the question of the legality of the disputed measure, among other things, because the applicant only referred to the question of legality in passing in the application, without providing any arguments about the precision or predictability of the legal provisions that are in his case applied.

According to the Court, the measure of confiscation of the case hada legitimate goal - crime prevention.

Finally, evaluatingmixing proportionality, that is, whether the domestic authorities, when applying the contested measure of confiscation of the case, established a fair balance between the applicant's right to property and the requirements of the general interest, and taking into account the field of free assessment left to the state, the Court reminded that the necessary balance would not be established if the owner of the property had to to bear a "single and excessive burden".

After finding that, on the one hand, the transfer of gold jewelry across the border was not illegal, that there was no prohibition on transfer in terms of the amount or value of gold, and that the confiscated bracelets were not related to any criminal activity, and that, on the other hand, the goods were legally acquired, that the applicant had no criminal record and was not under investigation, the Court assessed that there is nothing to indicate that the competent authorities tried to prevent any illegal activities (money laundering, drug trade, tax evasion, etc.) customs authorities. 

The court also noted that the misdemeanor courts imposed a fine on the applicant below the prescribed legal minimum, which indicates that they tried to achieve a fair balance between individual and general interest, but that the provisions of the Customs Law did not allow them to do the same when imposing the confiscation measure, already all undeclared goods were confiscated from the applicant.

In terms of the above, the Court is  recalled his earlier position that with regard to offenses related to non-declaration of money, a too rigid legislative approach can often lead to the failure of domestic authorities to establish the necessary fair balance between the requirements of the general interest and the protection of the individual's property rights, and that in specific case the mandatory measure of confiscation of the case (with a fine) may have prevented the domestic authorities from assessing a fair balance, and deprived the applicant of the possibility to effectively challenge this measure before those same authorities, without any prospect of success.

Consequently, the Court established a violation of Article 1 of Protocol No. 1 to the Convention.

FAIRLY SATISFACTION (Article 41 of the Convention)

The Republic of Serbia is obliged to pay the applicant the amount of 7,620.00 euros in the name of compensation for material damage and the amount of 1,000 euros in the name of compensation for expenses.

AGREE OPINION JUDGESSEIBERT-FOHR

JudgeSeibert-Fohr agreed with the conclusion of the majority that there was a violation of the right to property, but considers that the applicant in this case can only be an indirect victim, since the bracelets belong to his wife.

Therefore, although it was justified to allow him to use legal means in this case - both domestically and before the Court - one must not lose sight of the fact that the owner of the bracelets in question is his wife, and therefore the Court's decision on the allocation of the amount in the name of material damages should be interpreted as based on the expectation that the Applicant is obliged to transfer the amount received in this regard to his wife or, alternatively, that the jewelry be returned to his wife if it is still in the Defendant's possession.