FIFTH SECTION
DECISION
Application no. 41790/16
Kadri ERJUZ
against North Macedonia
The European Court of Human Rights (Fifth Section), sitting on 14 October 2021 as a Committee composed of:
Mārtiņš Mits, President,
Jovan Ilievski,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 12 July 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Kadri Erjuz, is a Turkish national who was born in1958 and lives in Istanbul. He was represented before the Court by Mr S. Risteski and Mr S. Pop-Angelov, lawyers practising in Skopje.
2. The Government were represented by their Agent, Ms Djonova.
3. Notified under Article 36 § 1 of the Convention and Rule 44 § 1 (a) of the Rules of Court of their right to intervene in the present case, the Government of Turkey expressed no wish to do so.
The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 11 August 2010 the applicant was driving a bus owned by the J.T. company on a regular route to Istanbul and was stopped by a customs official of the respondent State at the Deve Bair border crossing. When asked if he had anything to declare to customs, he replied that he had nothing to declare. After a detailed personal search and a search of the bus, on which the Customs Authority prepared reports, undeclared foreign currency in the amount of 18,000 euros (EUR) and 60,000 Swiss francs (CHF) was found.
6. The foreign currency assets found during the search were temporarily seized, as their amount exceeded the statutory limit of foreign currency allowed to be brought into the respondent State without being declared to customs. On the same day the Customs Authority issued a receipt to the applicant to that effect and prepared a report, which he did not sign. They also issued a payment order (платен налог) for a misdemeanour, which the applicant refused to pay.
7. On 12 August 2010, upon a request by the Customs Authority for the initiation of misdemeanour proceedings against the applicant, a hearing was held before the Misdemeanours Commission (Комисија за одлучување по прекршок – hereinafter “the Commission”). According to the record of the hearing, the applicant stated that he had been given cash in the amount of CHF 60,000 and EUR 28,000 by the owner of the company he worked for, Mr F.T., to take to Istanbul. He knew that carrying a large amount of foreign currency was not permitted. He further stated that he had worked as a bus driver for another company, the J. company, for twenty-eight years and had never travelled while carrying a large amount of foreign currency. He added that when he had been asked by the customs officers if he had anything to declare, he had answered in the negative, whereupon a personal search and a search of the vehicle had been performed and the assets had been found in his back pockets. A record of the hearing was signed by the applicant.
8. In the course of the misdemeanour proceedings the applicant contended, on 19 August 2010, that the assets had been withdrawn from the bank account of the J. company in Turkey in the amounts of EUR 77,000 and CHF 172,000 and had been given as a loan to F.T., the owner of the J.T. company in the respondent State, so that he could invest them in the respondent State. The applicant submitted evidence in that regard, including a registration document from the J. company in Turkey, bank receipts for the withdrawal of the money and a loan agreement.
9. At the hearing held on 7 April 2011 the applicant and the witnesses F.T. and K.J. had given their statements. According to the record of that hearing, F.T. had agreed with what the applicant had contended on 19 August 2010 (see paragraph 8 above) and had added that he was the owner of the J.T. company in the respondent State, and that the J. company in Turkey belonged to his brother. The applicant had mainly adhered to his first statement given on 12 August 2010 (see paragraph 7 above), but had added that the amounts of the assets he had been given by F.T. were CHF 60,000 and EUR 18,000, and that the customs authorities had told him to empty his pockets without giving him a chance to declare the assets.
10. At a hearing held on 17 March 2013 the owner of the J. company in Turkey, M.T., had been questioned as a witness. He had agreed with the statements that his brother, F.T., had made at the hearing held on 7 April 2011 (see paragraph 9 above).
11. On 7 November 2014, after three remittals, the Commission adopted a fresh decision, finding the applicant guilty of a misdemeanour and fining him EUR 1,500. The Commission also ordered the separate preventive measure of confiscation of the sums of EUR 18,000 and CHF 60,000. It relied on, inter alia, various written reports and minutes of 11 and 12 August 2010, the records of the hearings held on 7 April 2011 and 17 March 2013, and photo documentation.
12. On 4 March 2015 the Administrative Court dismissed a further appeal by the applicant and found the Commission’s decision lawful. The court held for the first time, inter alia, that the applicant had actually had the sums of CHF 60,000 and EUR 28,000 in his possession when he had been searched at the border, that EUR 10,000 had been returned to him (in accordance with the Foreign Currency Act and a government decision on the terms and the amount of cash in foreign currency and checks permitted to be taken in or out of the State) and that the remainder of the assets had been confiscated. The applicant challenged the Administrative Court’s judgment and requested that half of the confiscated assets be returned to him and that the proceedings be discontinued, as they had become time-barred.
13. On 5 November 2015 the High Administrative Court allowed the applicant’s appeal, quashed the Commission’s decision of 7 November 2014 and discontinued the proceedings pursuant to section 58(4) of the Foreign Currency Act, as they had become time-barred on 11 August 2015. The court did not give a decision on the confiscated assets. The judgment was delivered to the applicant on 12 January 2016.
14. On 14 January 2016 the High Administrative Court rejected a request by the Customs Authority to supplement its decision of 5 November 2015 concerning the separate preventive measure and the confiscated assets, for which there had been no final decision. The court held that, pursuant to section 364(1) of the Civil Proceedings Act, it was only the appellant (жалителот, the applicant in the present case) in the proceedings before the second-instance court who had the right to request a supplementary decision in respect of the confiscated assets and the separate preventive measure within fifteen days of receiving the primary decision (in this case, that of the High Administrative Court of 5 November 2015). The Ministry of Finance was not an appellant in those proceedings. Subsequently, on 15 February 2016, the applicant submitted a request to the Customs Authority for the return of the confiscated assets for which no final court decision had been adopted, but complained that there had been no response.
COMPLAINT
15. The applicant complained about the decision of the administrative authorities to confiscate the sums of EUR 18,000 and CHF 60,000 because he had failed to declare them to the customs authorities. He relied on Article 1 of Protocol No. 1 to the Convention, which reads 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 LAW
The parties’ submissions16. The Government, referring to Eliseev and Ruski Elitni Klub v. Serbia (no. 8144/07, § 33, 10 July 2018) and Dagostin v. Croatia (no. 67644/12, § 24, 23 May 2017), submitted that the applicant did not have victim status. In particular, it had never been disputed in the domestic proceedings that the assets had not belonged to him. The Government further argued that the applicant had failed to exhaust domestic remedies. Specifically, he had not made a request in good time for the second-instance decision to be supplemented (see paragraph 14 above) and had not brought a claim for unjust enrichment in the civil proceedings in order to have the confiscated assets returned to him. In that connection, the Government submitted relevant domestic case-law supporting their assertion that the above-mentioned domestic remedies were effective. As to the merits of the application, the Government argued that the confiscation of the money had been lawful, had served a legitimate aim and had been proportionate.
17. The applicant contested the Government’s assertion that he had failed to exhaust domestic remedies before applying to the Court, but did not comment on their argument regarding his lack of victim status in the present case. He submitted that, as the proceedings had become time-barred, there had no longer been grounds for the State to hold the confiscated assets and it had been required to restore them to the applicant without being prompted to do so. Thus, the confiscation had been unlawful and disproportionate.
The Court’s assessment18. The relevant case-law regarding who can claim victim status pursuant to Article 34 of the Convention and who can allege a violation of Article 1 of Protocol No. 1 to the Convention is summarised in Eliseev and Ruski Elitni Klub (cited above, § 32) and Dagostin (cited above, §§ 23-24).
19. The Court reiterates that a person in possession of an item must be presumed to have a property right over it until proof to the contrary is adduced (see Ziaunys v. the Republic of Moldova, no. 42416/06, §§ 30-31, 11 February 2014).
20. Turning to the present case, the Court notes at the outset that, according to the applicant’s own admission before the domestic authorities (see paragraphs 7, 8 and 9 above) and evidence submitted in the proceedings at domestic level and before the Court, the confiscated assets did not belong to him, but to F.T., who had signed a contract and had received the assets as a loan from the J. company in Turkey (see paragraph 8 above).
21. Additionally, since the applicant never argued that the assets belonged to him personally, the mere fact that the cash was seized from him is not sufficient to establish that he had a “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention (see Eliseev and Ruski Elitni Klub, cited above, §§ 34 and 35, and Dagostin, cited above, § 24).
22. Accordingly, the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 18 November 2021.
Martina Keller Mārtiņš Mits
Deputy Registrar President