FIFTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25951/03
by Selami Ali DZHEHRI
against Bulgaria
The European Court of Human Rights (Fifth Section), sitting on 25 September 2007 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrR. Maruste,
MrsR. Jaeger,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 5 August 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Selami Ali Dzhehri, is a Turkish national who was born in 1960 and lives in Ankara, Turkey. He is represented before the Court by Mr P. Grozev, a lawyer practising in Sofia, Bulgaria.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At about 1 a.m. on 20 February 1997 the applicant, en route from Turkey to Germany, crossed the Bulgarian‑Turkish border together with four other Turkish nationals. They were travelling in a Mercedes. The applicant was carrying 105,000 German marks (DM) and 10,000 United States dollars (USD), which he allegedly intended to use to purchase a car and some machinery in Germany. He was not asked to fill in a customs declaration and did not fill in one.
Later that day, at about 5.30 a.m., the applicant crossed the Bulgarian-Serbian border. There are two versions as to the exact course of the events of that morning.
According to the applicant, the Bulgarian customs officers asked him to fill in a declaration. The applicant stated that he carried DM 105,000 and USD 10,000. At that point, the officers tried to appropriate DM 10,000 from him. The applicant resisted. The officers destroyed the declaration and forced the applicant to fill in a second declaration and state there that he carried DM 95,000. The applicant started filling the declaration in, but refused to put in this amount. The officers made him sign the declaration and put dashes in the fields for the amounts. Then they drew up a record of a customs violation and apparently provisionally seized the money carried by the applicant.
According to the findings of the criminal courts which later tried the applicant, he had, despite having been told to do so in Turkish, not filled in a customs declaration upon crossing the Bulgarian‑Serbian border, thus implicitly stating that he had no currency on him. Prompted by the fact that he had entered Bulgaria in a Mercedes and was leaving it in a BMW, the customs officers had checked him and had found DM 95,000 and USD 10,000 on him. The applicant had been given an opportunity to object, but had not done so.
A criminal investigation was opened into the incident. The applicant was charged. It is unclear whether he remained in Bulgaria during the proceedings.
On an unspecified date the Slivnitsa District Prosecutor's Office decided to discontinue the investigation. Its decision was upheld by the Sofia Regional Prosecutor's Office and by the Sofia Appellate Prosecutor's Office. On 30 March 1999 a prosecutor from the Supreme Cassation Prosecutor's Office also upheld the decision to discontinue the investigation.
In a decision of 15 May 1999 the head of the preliminary investigation department of the Supreme Cassation Prosecutor's Office, acting pursuant to an appeal by the customs, quashed the discontinuation of the investigation and re-opened it. He reasoned that the investigation had not been comprehensive and that it had not elucidated how exactly the incident of 20 February 1997 had unfolded.
On an unspecified later date the applicant was indicted and committed for trial.
In a judgment of 1 April 2002 the Slivnitsa District Court found the applicant guilty of not having declared the money carried by him at the border, contrary to Article 251 § 1 of the Criminal Code of 1968 (“the CC” – see below, Relevant domestic law and practice). It sentenced him to two and half years' imprisonment, suspended for four years. It also forfeited the entire undeclared amount (DM 95,000 and USD 10,000), as provided by Article 251 § 2 of the CC.
The applicant appealed. In a judgment of 6 November 2002 the Sofia Regional Court upheld the lower court's judgment.
The applicant appealed on points of law. He contested the manner in which the courts had assessed the evidence and disputed their findings on a number of factual issues. He also argued that, not having received any explanations in Turkish, he had not understood what exactly had been going on until the opening of the investigation. He had not made any objections because he had not understood the tenor of the record drawn up by the customs officers. The applicant further argued that the re‑opening of the investigation had infringed his fair trial rights.
In a final judgment of 29 April 2003 the Supreme Court of Cassation upheld the lower court's judgment. It found that the applicant had been explained in Turkish, upon entering Bulgaria and upon leaving it, that under Bulgarian law he had to declare the currency valuables carried by him. A customs declaration, in Turkish, had been given to him upon his leaving Bulgaria. In spite of that he had not declared the money that he had had on him. The check had been prompted by a peculiarity observed by the customs officers: the applicant had entered the country in a Mercedes, but was leaving it in a BMW with German number plates. When he had been given a customs declaration, he had not filled it in, thus implicitly declaring that he had not carried money. Thereupon the customs had searched him and had found DM 95,000 and USD 10,000. The applicant had been given the opportunity to object to the record of a customs violation through a Turkish-speaking official, but had not done so. All this showed that he had been specifically asked, in a language that he understood, to declare the money which he carried, but had failed to do so. Nor had the applicant's defence rights been breached, as after the re‑opening of the investigation he had been allowed to acquaint himself with the newly gathered evidence, in the presence of his counsel and an interpreter.
It seems that throughout the proceedings the applicant had an interpreter and was represented by counsel.
B. Relevant domestic law and practice
1. Obligation to declare cash to the customs
By section 31 of the Customs Act of 1960 (“Закон за митниците”), as in force at the material time, all persons crossing the border had to declare the “currency valuables” (defined in section 3(a) of the Transactions with Currency Valuables and Currency Control Act of 1966 (“Закон за сделките с валутни ценности и валутния контрол”) as, inter alia, foreign currency notes, coins or any form of legal tender abroad) carried by them. Section 71(1) of the Regulations for the application of the Customs Act of 1960 (“Правилник за прилагане на Закона за митниците”) provided that passengers had to present the “currency valuables” carried by them to the customs officers, so as to enable them to carry out customs control. Section 71(2) of the Regulations provided that foreign residents had to declare “currency valuables” in writing.
At the material time “currency valuables” were also regulated by the Transactions with Currency Valuables and Currency Control Act of 1966 and the regulations for its application. Section 7(1)(3) of the Regulation for Importing and Exporting Currency Valuables of 1994 (“Наредба за внос и износ на валутни ценности”), as in force at the material time, provided that when entering or leaving the country, local and foreign residents had to fill in a declaration about, inter alia, the foreign currency carried by them in cash, if its sum total surpassed the equivalent of USD 1,000. If the amount carried surpassed the equivalent of USD 10,000, the declaration had to be filled in in duplicate; the first copy remained with the person concerned and the second was sent to the tax department of the Ministry of Finance (section 7(2) and (3) of the Regulation).
2. Administrative sanctions
The failure to comply with the requirements of the Regulation for Importing and Exporting Currency Valuables of 1994, was, according to its section 11 and to section 37 of the Transactions with Currency Valuables and Currency Control Act of 1966, an administrative offence punishable by a fine of up to 500,000 old Bulgarian levs (BGL), imposed in accordance with the Administrative Offences and Penalties Act of 1969 (“Закон за административните нарушения и наказания”). In addition, section 20(3) of the latter Act provides that the items which constitute the object of an administrative offence may be forfeited if they belong to the offender and if the respective statute so provides. By section 20(4) of the same Act, unless the respective statute so provides, forfeiture is inadmissible if the value of the object of the offence clearly does not correspond to the character and the gravity of the offence.
3. Criminal sanctions
Article 251 § 1 of the CC, introduced in 1995, provides that whoever breaches a statute, a regulation of the Council of Ministers, or a published act of the Bulgarian National Bank regulating, inter alia, the importing and exporting of currency valuables and the obligation to declare them, if the object of the offence is of a “particularly great amount”, is punishable by up to six years' imprisonment or a fine equalling the double of the object of the offence.
By paragraph 2 of that Article, the object of the offence is forfeited. If the object is missing, the offender is liable to pay up its money value.
There CC gives no definition of the notion “particularly great amount”. In a binding interpretative decision of 30 October 1998 (тълкувателно решение № 1 от 30 октомври 1998 г. по н.д. № 1/1998 г., ОСНК) the Plenary Meeting of the Criminal Chambers of the Supreme Court of Cassation held that the expression meant one hundred and forty minimum monthly salaries, as set by the Council of Ministers. At the time of the offence the minimum monthly salary was BGL 11,000 (at the official exchange rate on 20 February 1997, when the offence was committed, this was USD 4.24).
According to the doctrine and the case‑law of the Supreme Court of Cassation, the above offence is a délit formel, that is, its actus reus is completed by failing to declare the money, no additional tangible harmful result being necessary (Гиргинов, А., Наказателно право на Република България, Особена част, 2002, стр. 315, решение № 726 от 7 февруари 2003 г. по н.д. № 606/2002 г., I н.о. на ВКС). The offence is a wilful one (Article 11 § 4 of the CC, Стойнов, А., Наказателно право, Обща част, 1999, стр. 265 in fine and Гиргинов, А., Наказателно право на Република България, Особена част, 2002, стр. 315 in fine).
COMPLAINTS
1. The applicant complained under Article 1 of Protocol No. 1 about the forfeiture of the entire amount of cash which had been found on him at the border.
2. The applicant complained under Article 6 of the Convention that the criminal courts had not been impartial, had not properly scrutinised the exculpating evidence, and had not duly examined his arguments.
3. The applicant complained under Article 6 of the Convention that the investigation had been re-opened after having been discontinued by decision of a prosecutor.
THE LAW
1. In respect of the forfeiture of the entire amount of cash found on him at the border the applicant relied on Article 1 of Protocol No. 1, which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. In respect of his complaint about the fairness of the criminal proceedings against him the applicant relied on Article 6 of the Convention. The Court considers that the applicant's complaint about the re‑opening of the investigation against him falls to be examined under Article 6 of the Convention and under Article 4 of Protocol No. 7. These provisions read, as relevant:
Article 6 of the Convention
“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”
Article 4 of Protocol No. 7
“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State. ...”
In the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court found that they did not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that these complaints are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaint under Article 1 of Protocol No. 1 concerning the forfeiture of the entire amount of cash found on him at the border;
Declares the remainder of the application inadmissible.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy